WOODWARD

v.

WEST SIDE STREET R. Co.

(Wisconsin Supreme Court, May 5, 1888.)

Passenger-Boarding Street Car-Condition of Tracks Instructions.Plaintiff signaled a street-car, and attempted to enter it while moving, the driver having failed to observe his signal. Plaintiff fell, his hand caught in the rail, and he was dragged some distance before the car was stopped. Several witnesses testified that the driver was careless, did not set the brakes, pull up the horses, or attempt to stop the car in any way, and that it was only stopped by two persons running in front of the car and holding up their hands. The driver testified that as soon as the bell was rung by passengers inside he set the brakes, but that the wheels slid on account of the slippery condition of the track. Witnesses testified on behalf of the company that the place where the accident occurred was on the down grade, and that in winter when the tracks were slippery the cars would slide down it, although the brakes were set and the horses held back. Held, that an instruction to the effect that the jury must take it as an established fact that in the winter season cars would slide at the place in question, though the brakes were firmly set, and for a time beyond the control of the driver, was erroneous, and that it ought to have been left to the jury to say whether the driver exercised due diligence in attempting to stop the car, and whether, in fact, it did slide after the brakes were set owing to the condition of the track.

Same-Boarding Moving Car-Liability of Company.-Even if a person be guilty of negligence in attempting to get on a street car while it is in motion, if the driver was notified that such person had fallen, and was being dragged at the tail end of the car, and could have avoided injury by the exercise of reasonable care in stopping it, the company is liable.

APPEAL from Circuit Court, Milwaukee County.

Action to recover damages for personal injuries. Plaintiff appeals from a judgment for defendant. The opinion states the case.

Harlow Pease for appellant.

Jenkins, Winkler & Smith for respondent.

Facts.

TAYLOR, J.-The appellant brought this action against the respondent to recover damages for an injury received by him under the following circumstances: On the 9th day of February, 1885, the appellant was at the office of E. D. Holton, at No. 613 Grand avenue, in the city of Milwaukee. At about 10:30 A.M. on that day he left said office, which is on the south side of said avenue, and about

the middle of the block between Seventh and Sixth streets, which cross said avenue, running north and south, for the purpose of taking the street car going east on the avenue. Mr. James Holton accompanied the appellant from the office to see him off. The appellant and Mr. Holton both testify that they hailed or signalled the driver to stop, and permít the appellant to get on the car; that the driver paid no attention to their signals, although he appeared to be looking towards them; and that he did not stop the car. The appellant went towards the car, and took hold of the handle at the side of the car, by the platform, and attempted to get on the car, but by some means his foot slipped from the step, and he fell at the side of the car, and his third finger, on which he had a heavy ring, caught in the handle in such manner that he could not get his hand loose from the handle of the car, and he was drawn along by the side of it, hanging by his finger, for about 160 feet, to the middle of Sixth street, where the car was stopped and he was released. His finger was injured so that it is permanently flexed inward. The evidence on the part of the plaintiff shows that as soon as the appellant fell, he called out to stop the car; that those in the car called to stop the car, and rang the car bell violently; that other persons on the walk called to the driver to stop the car; and that finally two persons ran in front of the horses, about the middle of Sixth street, and threw up their hands to stop the horses, and that the horses and car then stopped. Several witnesses testified that they were on the sidewalk within 30 feet of the car, and that the driver made no effort to stop the car or horses; that the horses were pulling the car, and the wheels of the car were turning; that the car was not sliding; that it was snowing; that there was a high wind from the east, the direction in which the car was going; and that there was considerable snow on the track at the time. These witnesses also testified that the driver seemed to pay no attention to anything which was going on about him, but looked straight before him, apparently without making any attempt to stop the horses or the car. These statements of the plaintiff's witnesses as to the apparent inattention of the driver as to what was going on about him is to some extent corroborated by the evidence of the driver himself. He testifies that he did not see either Holton or the appellant signal to him to stop the car; that he did not know that any one got on the car, or attempted to get on it, between Seventh and Sixth streets; that he heard no one call him to stop the car, and saw no one in the street in front of the horses when they stopped on Sixth street; that after the horses were stopped, he did not see the appellant, or know that he was

injured, or how he was injured; but he does testify that when he was about 120 feet from where the horses stopped he heard the bells ring violently, as though something was the matter, and he immediately set the brakes so as to stop the wheels of the car from turning, and held up his horses, but that the car slid, and he could not stop it until it stopped in the middle of Sixth street.

The main contention of the plaintiff on the trial was that the driver was negligent in not stopping the car immediately after the plaintiff slipped and fell, and that he wrongfully and negligently dragged him, whilst hanging by the finger to the car, for a long distance, by reason of which he was greatly injured. It was also claimed by the appellant that the car handle was not constructed in proper manner, and that it was negligence on the part of the defendant, that no conductor was on the car. On the trial, however, these charges of negligence were not claimed by the plaintiff to have been established by the evidence, and his counsel relied mainly upon the negligence of the driver as a ground upon which to base a recovery. The charge of negligence of the driver was the main question in the case, and it was met by the company with the claim that on account of the condition of the track and the descent in the grade at the place, the driver could not stop the car by the use of all reasonable means and appliances, sooner than it was stopped. That the plaintiff was dragged, as he was, and the distance he was, because it was impossible for the driver to stop the car, and not because the driver neglected the use of any proper means for stopping the same. Against the testimony of several apparently creditable witnesses, who had ample opportunity of seeing what was done, and who testified that the horses were not held up, but were drawing the car until stopped by the men in front of them, in the middle of Sixth street, and that the car did not slide, but the wheels were turning, the driver alone had testified that he set the brakes so as to stop the wheels, that the car slid, and the horses were held back by him. In this state of the evidence the court allowed the respondent to introduce witnesses showing the descending grade of the track between Seventh and Sixth streets, and also showing that at times in the winter season, when the track was slippery, the cars would slide down that grade, notwithstanding the brakes were set, and the horses were held up. Admitting that this evidence was competent as tending to confirm the testimony of the driver, that the car slid down the grade at the time the accident happened, it was certainly far from being conclusive upon the question whether it did, in fact, slide at the time in question. Whether it

Instructions.

would slide at the time in question depended upon the condition of the track at the time. If, as claimed by the appellant, there was considerable snow on the track at the time, with the wind blowing at the rate of 30 miles or more, directly in the face of the car, there was no evidence given on the part of the defendant except the evidence of the driver, that it did slide although the brakes were properly set, and the horses held back. In this state of the evidence the learned circuit judge instructed the jury as follows: "The jury are instructed that if they find from the evidence that the plaintiff attempted to board the car without the knowledge of the driver, the car being reasonably safe for the use of this road, and in so doing slipped before he got upon the car, and the finger with the ring upon it caught and became fastened in the handle, thereby causing him to be dragged; if the car was upon the down grade upon Grand avenue; if the driver, so soon as he was notified by the bell or noise that something was the matter, set the brakes as tightly as he could, and made all reasonable and proper efforts to stop the car, but that on account of the weather and the slippery condition of the track the car continued to descend the hill, dragging the plaintiff until it was stopped at Sixth street, then, and in such case, the plaintiff cannot recover in this action, and your verdict must be for the defendant." "With respect to the question whether the cars would slide when upon the down grade of Grand avenue, when the brake is firmly set, and the car be for a time beyond the control of the driver, the jury are instructed that the defendant has presented the testimony of some six witnesses who testified to a practical knowledge, acquaintance, and experience with the subject, and have testified positively that such is the fact." "The testimony of the plaintiff on the subject is simply to the fact two or three witnesses have testified that they never have noticed cars to slide. The testimony of the defendant's witnesses on that subject is positive. The testimony of the part of the plaintiff in that regard is simply negative testimony, and amounts to but little more than, so to speak, a mere scintilla of evidence, and does not justify the jury disregarding the positive and otherwise unimpeached testimony that such sliding does occur." "The evidence in this case, therefore, justified the court in instructing you that it is established by the evidence in the cause that, in the winter season, cars coming upon the down grade of Grand avenue will slide, even when the brake is completely set, and the car for a time, until its momentum is overcome by the resistance of the brake, passes beyond the control of the driver to stop it. The jury must take that as an established

fact in this case, and determine the questions submitted to it, in the light of such established fact."

Instruction ing-Car slid

of tracks.

We think this charge was misleading. The question for the jury in the case was not whether, under certain conditions, a car would slide upon the track with the brakes set and the horses held back, but whether it did slide. with the brakes set and the horses held back at the held mislead time in question, and under the conditions shown ing Condition by the evidence. by the evidence. In the second and third paragraphs excepted to the learned judge instructs the jury that it is conclusively established "that cars would slide when on the down grade of Grand avenue, when the brake is firmly set, and the car be for the time beyond ti e control of the driver." The learned judge does not state what the condition of the track must be, when the cars on that grade would be beyond the control of the driver, but declares generally that it is conclusively established "that the cars would slide when on the down grade," without regard to the condition of the track or the weather. In the last paragraph of the instructions excepted to the learned judge qualifies his statement by saying that it is conclusively established that the cars will slide in the winter season, with the brakes firmly set, without any other qualifications as to the condition of the track or state of the weather, and then concludes the instruction by saying that "the jury must take that as an established fact in this case, and determine the questions submitted to it, in the light of such established fact." It seems to us that when the court instructed the jury that they must take it as an established fact, in the case they were considering, that, in the winter season, cars coming down the grade of Grand avenue would slide, though the brakes were set firmly, and for a time be beyond the control of the driver, the jury might well understand the instructions to mean that, in the case they were trying, it was established that the car did slide as testified to by the driver. The car was conclusively shown to be coming down the grade of Grand avenue, and it was in the winter season that the accident happened. We are very clear that, under the evidence in this case, it was error for the court to instruct the jury that the car was beyond the control of the driver at the time the accident happened, and that, under the instructions given, the jury would be very likely to understand that the court so intended to instruct them. It is said by the counsel for the respondent that if the instructions above quoted were not strictly correct, under the evidence, yet, as there was a special verdict, and the jury have found that the plaintiff was not in the exercise of ordinary care when he was