
    Thoresen, Administrator, Appellant, vs. The La Crosse City Railway Company, Respondent.
    
      April 12
    
    
      May 1, 1894.
    
    
      Street railways: Collision with wagon crossing trade: Negligence of car driver: Contributory negligence: Court and jury.
    
    1. An ordinance providing that any team or vehicle meeting or being overtaken by a street car shall give way to the car gives the driver of the car no right to ignore or disregard the presence of other vehicles on the street, especially at street crossings.
    
      2. It is the duty of a street-car driver to exercise the highest degree of care to avoid collision or accident, especially at street crossings; and when approaching a much-used crossing he is bound to keep a lookout ahead, and will not be excused for failure to do so by the fact that he was giving his attention to the identification of another car, to which he expected to change.
    8. Upon the evidence in this case, it is held that it was a question for the jury whether the plaintiff’s intestate (whose death resulted from the collision of a sti’eet-car with her wagon) was guilty of negligence in attempting to cross the street-car tracks, about thirteen feet wide, at a distance of about two rods in front of a single-horse car, proceeding at a very moderate pace.
    APPEAL from tbe Circuit Court for La Crosse County.
    This action is for damages for tbe death of tbe plaintiff’s intestate, caused by alleged negligence of the defendant. Tbe complaint states, in substance, that October 17, 1892, between 7 and 8 o’clock in the evening, tbe deceased was traveling in a wagon drawn by a horse along King street in an easterly direction, and while crossing Fourth street at the intersection of these streets her wagon was struck by a street car of the defendant going in a northerly direction along the center of the latter street, and her wagon was broken and overturned, and she was thrown to the ground, receiving injuries from which she died. Negligence was charged against the defendant, in causing its car to approach and rapidly pass said crossing, and carelessly omitting to ring the car bell or otherwise warn or notify the deceased, of the approach of said horse and car, or to stop at said crossing and permit the horse and wagon driven by the deceased to pass in safety. The defendant denied all negligence on its part, and alleged negligence on the part of the deceased, causing the accident. The circuit court, at the close of the testimony, granted judgment of nonsuit against the plaintiff, holding there was not sufficient evidence of negligence on the part of the defendant to go to the jury, and that the deceased was guilty of contributory negligence at the time, causing or contributing to the accident ; and the plaintiff appealed.
    It was shown at the trial that a switch or double track in the center of Fourth street, 469 feet long and thirteen feet wide, extended across King street at the point in question, 234 feet of which was south of King street, and 169 feet was north thereof. The accident occurred about 7 o’clock in the evening, and it was dark and raining a little. There was an electric light burning over the center of Fourth street, about 410 feet south of King street, and another about 310 feet north thereof. The car was lighted with three lamps on the inside, and had the usual windows in the front and sides; and a pink light could be seen on one side of the front, and a white light in the center of it. ■The city wood and hay market is at the northeast corner of the intersection of these streets, and on the southwest corner is a school-house, on the southeast corner is a public park, and on the northwest corner is a bakery and restaurant, and the crossing is in a much-traveled portion of the city.
    The deceased had been to deliver milk at the bakery, accompanied by a boy, Harold Wold, about thirteen years of age, who assisted her. The horse and wagon stood on the south side of King street, facing west, when they got in, and turned around and started easterly along said King street across Fourth street. Harold Wold testified, on behalf of the plaintiff, that they saw street ears on the track on Fourth street; one about half a block south of King street, and one crossing King street, going south. “ It seemed to us as if the one about half a block south was standing. We crossed the street right after the car going south passed us, and we lost sight of the car standing on ■the south side that was going north. I don’t know how we lost sight of it. We crossed over just as quick as the car going south passed us. It was right at the side of her horse. We didn’t then look at the other car,— the one standing. When we got on the first track, wTe saw the standing car coming very fast. The car driver driving the car coming from the south was looking back, and he continued looking back as long as I saw him. I didn’t see him try to stop the car. When we were on the last track the car struck the wagon. The deceased had the whip in her hand, and used it, and tried to drive fast, but it was too late. When the car struck the wagon I fell out on the side. The seat came on the side, and I went onto the ground. The wagon was thrown on Fourth-street, on the south side of King street, towards the park. One of the hind wheels was broken. Didn’t see the driver just all the time, on the car coming south. As we got on the second track we saw him. When we got to the first track the other street car was about two rods off, and we thought we had plenty of time, and drove on; and as the last wheel was on the track the street car struck us, and the street-car driver was looking behind. The horse stopped right off; only went a few steps and stood still. Were on the first track when the street car was two rods off. Tho deceased was going to the water trough to water the horse, or across the street. We had another place to deliver milk, down on Fourth street and across the street from where we started,— the second house from the park. Were going straight ahead when she fell out. Were not going down Fourth street at the time. Were tipped out on Fourth street just below the crossing. I don’t know how many feet below. The east side of the oar struck the wagon. I saw what the driver was doing. He was looking back. Don’t know when he stopped looking back, but I saw him when the car struck the wagon, and he was then looking back. , lie didn’t have hold of the brake, trying to set it. I just looked up as the car struck the wagon. Don’t know what he was doing before then. Didn’t see him handle the brake at all. Deceased took up the whip just when we got on the last track, and the horse on the horse car struck the wheel pretty near then. The car struck the hind wheel, and that tipped the wagon up and threw it on the side. Didn’t see the driver of the car just when it was two rods off, but did as soon as we got pretty near across. lie was two or three feet off when the car struck the wagon.” The testimony was that the car was going at a good brisk walk; an ordinary speed; not very fast. The deceased was found lying twenty or thirty feet south of King street.
    Plaintiff at this point rested his case, and the defendant’s counsel moved for a nonsuit, but the court overruled it.
    Evidence was given by the driver that it was so dark he could not see anything; that there was a good bell on the horse; that he passed a south-bound car between King and the next street south, standing on the south part of the switch; it had got down near the end of the switch, and it was about 170 feet south of King street; that he wanted to change off to his own car, so he brought his car pretty near to a standstill; that he thought the south-bound car was No. 3,— his own car; found it was not his car, let the brake loose, started ahead, and looked to the front. “ The horse stepped only a couple of times, and I saw the horses stand face to face, and turned my horse around to the left.5’ He testified that the horse came right along toward bim; that be didn’t say anything, but put on the brake again; that it was dark in front of him; couldn’t see anything. Being asked whether he was looking behind, he answered, “ I looked ahead again, and, after starting up, looked up, and that is the first I saw of the wagon; ” that he was trying to stop his car, and was able to stop it. “ Q. They drove together there at that time? A. Yes, sir. This was twenty feet south of Ring street. The wagon stood over on two wheels.” Being asked to explain how it was, if he stopped his car enough to look at the other as it passed him, that in taking two or three steps which his horse took it had gone up north 150 feet, he answered: “ The woman was twenty feet south of Ring street. Q. You say this car stood 170 feet from Ring street as you passed it? A. Of course; 170 feet. As I looked in front, the horses stood face to face. Q. And your horse only took two or three steps after you looked at the car? A. Yes, sir. Q. How far did your horse go? A. Went just as long as the car was. Q. Went the length of your car and the horse? A. Yes, sir. • Q. Then you struck? A. Yes, sir.”
    The defendant produced other testimony tending to show that the south-bound car met and passed the north-bound car about 120 feet south of Ring street; that the driver of the north-bound car started up, and did not go more than two or three steps, and the horse of the intestate was there; that the horses faced each other when he saw it; that the car horse did not walk fast; that the front part of the car hit the hind wheel, and tipped the wagon over, and that it was from twenty to thirty-five feet south of Ring street where the woman fell out; that the over-turned wagon stood with two wheels up, tipped over from west to east, and the horse had pulled out of the shafts, standing in front, facing south. There was a conflict of evidence as to whether the accident occurred at the crossing or intersection of the streets, or south of King street as above stated, and whether the intestate was driving directly across King street, or south on and along Fourth street. The defendant put in evidence an ordinance of the city, of La Crosse, which provides: “ The cars of s’aid company shall be entitled to the track, and in all cases where any team or ve-hide shall meet or be overtaken upon either of the street railways in said city by any such car, such team or vehicle shall give way to said car,” etc.
    For the appellant there was a brief by Martin Bergh, and Bleekmcm da Bloomingdale, and oral argument by F. H. Bloomingdale and Mr. Bergh.
    
    They argued, among other things, that in cases of injuries by negligence a nonsuit is proper only when there is an entire absence of evidence tending to establish the case, or when the negligence of the party injured is affirmatively and clearly shown, so as to admit of no doubt or controversy. Langhoff v. M. da P. du G.B. Go. 19 Wis. 489; Imhoff v. 0. da M. B. Go. 22 id. 681; Spensley v. Lancashire Ins. Go. 54 id. 433; Nelson v. G., M. de St. P. B. Go. 60 id." 320; Dahl v. Milwaukee G. B. Co. 62 id. 652; Hoye v. C. <& N. W. B. Go. id. 666; Guggenheim-v. Lj. S. & M. S. B. Go. 57 Mich. 488; Hill v. Fond du Lac, 56 Wis. 242; Chicago, St. L. & P. B. Go. v. Hutchinson, 120 Ill. 587; Sherry v. N. T. O. da H. B. B. Go. 104 N. Y. 652; Tyler v. N. Y. <& N. E. B. Go. 137 Mass. 238; Northrup v. N. Y., O. da W. B. Go. 37 Hun, 295; Berner v. L. 1. B. Co. 36 id. 253. The driver of a street car must exercise ordinary care to avoid collisions with wagons or carriages upon the street, and failure in this respect will render the company liable in case of injury. 2 Shearm. & Kedf. Neg. (4th ed.), 250; Beach, Contrib. Neg. (2d ed.), sec. 287; Collins v. South B. B. Co. 142 Mass. 301; Heuche v. Milwaukee G. B. Go. 69 Wis. 401; Baltimore G. P. B. Go. v. McDonnell, 43 ‘Md. 534, 553; Anderson v. Minneapolis St. B. Go. 42 Minn. "490; Booth, Street Railways, 418 et seg.j Strutsel v. St. 
      
      Pa/ul C. R. Go. 47 Minn. 643; Citizens’ St. R. v. Steen, 42 Ark. 321; Mayo v. B. & M. R. Go. 104 Mass. 137; Chicago G. R. Co. v. Robinson, 127 Ill. 9; Murphy v. Orr, 96 N. T. 14; Hyland v. Yonlters, 15 N. T. St. Rep. 824. A person is not bound to exercise the same care in crossing a streetcar track as in crossing a railroad track, and the question in each case whether a person was negligent in doing so is for the jury. Shea v. St. Paul C. R. Co. 50 Minn. 395; Wells v. Broolclyn C. R. Co. 58 Hun, 389; Quinn v. Atl. Ave. R. Co. 12 N. T. Supp. 223; Watson v. Minneapolis St. R. Co. 53 Minn. 551; Lynam v. Union R. Co. 114 Mass. 83; Ker-rigan v. West End St. R. Co. 158 Mass. 305; Pope v. Kansas City C. R. Co. 99 Mo. 400; Benjamin v. Holyolte St. R. Co. 160 Mass 3; Prisooll v. West End St. R. Co. 159 id. 142; Peterson v. Si. Paul C. R. Co. 55 N. W. Rep. 906.
    Eor the respondent there was a brief by Losey <& Woodward, and oral argument by G. M. Woodward.
    
   Pinney, J.

The evidence in this case, we think, was such as to require the submission of the case to the jury. The testimony on the part of the plaintiff tended very clearly to show that the defendant, by its car driver, was negligent in the conduct and management of its car, under the circumstances as described by the witness Harold "Wold, and there are some facts and circumstances that tend to corroborate this view. There is no doubt that the driver looked at, and back towards, the south-bound car; but there is a- decided conflict of evidence as to the relative positions of the wagon and his car, and the distance they were apart at the time. Undoubtedly the driver had a right to look for the car to which he expected to change; but his right in this respect was relative and not absolute. The evidence shows that the intersection of these streets was a much-frequented place in the city, and the evening was dark and rainy. The single-horse street car had only two or three passengers aboard, and, like other vehicles, had a 'common right of passage in the street, but was necessarily confined to its track; and it would seem, from the ordinance in evidence, that it had priority of passage when met or overtaken by any other vehicle. The driver of the car had, however, no right to ignore or disregard the presence of other vehicles on the street, and particularly at the crossing. The authorities cited by the appellant’s counsel show that it is the duty of a driver to exercise the highest degree of care to avoid any collision or accident, especially at street crossings, and that he should exercise all the care that prudence may suggest in looking about and listening to assure himself that his track is clear and safe, and for his failure to do so his employer is responsible. Heucke v. Milwaukee C. R. Co. 69 Wis. 401; Collins v. South Boston R. Co. 142 Mass. 301; Baltimore C. P. R. Co. v. McDonnell, 43 Md. 534, 553; Anderson v. Minneapolis St. R. Co. 42 Minn. 492. The company was bound to exercise its rights and privileges with a proper regard to the rights and safety of others lawfully using the street; and on the occasion in question the driver should have kept a lookout and exercised a proper degree of caution, in approaching the crossing, in this respect. He ought not to have given his attention solely to an attempted identification of his car. The duty which the company and its employees owe to the public is paramount to that which they owe to each other. Anderson v. Minneapolis St. R. Co. 42 Minn. 493.

It is the duty of the company and its employees to the public, to seek to avoid accidents where they are likely to occur, instead of omitting the reasonable precautions that the situation and circumstances naturally and fairly suggest. It is evident that a car proceeding as slowly as the one on the present occasion could have been easily and readily stopped. There is evidence tending to show that the driver, when he ought to have been keeping a lookout ahead, was looking behind, and that he did nothing to stop the oar. Although there is evidence to support a contrary contention, we forbear to remark upon it, for the obvious reason that the truth of the matter is for the consideration of a jury, subject to the power of the court -to set aside any verdict not warranted by the evidence.

In order to justify the court in taking a case from the jury, the question must be -wholly one of law; for if it depends upon controverted facts, upon what facts the evidence establishes, the credibility of witnesses, or what inferences or conclusions should be drawn from the testimony, then it is clearly a question of fact for the jury. Langhoff v. M. & P. du C. R. Co. 19 Wis. 496; Nelson v. C., M. & St. P. R. Co. 60 Wis. 320; Hill v. Fond du Lac, 56 Wis. 242; Valin v. M. & N. R. Co. 82 Vis. 5, 6. The rule is well settled that proof of contributory negligence must be clear and decisive in order to warrant a nonsuit or an absolute direction to the jury on that ground. “ Vhen circumstances leave the inference of contributory negligence in doubt, and the court is unable to say that, upon the most favorable construction which can be given to the evidence for the plaintiff, there is nothing to submit to a jury, a non-suit is improper.” Ewen v. C. & N. W. R. Co. 38 Wis. 613, 628. In Houfe v. Fulton, 29 Wis. 296, it was held that: “ The question of contributory negligence is one eminently proper for a jury to determine; and when the evidence does not clearly and indisputably show such negligence or want of care on the part of the plaintiff, so as to leave nothing to submit to the jury on the opposite theory or position, a nonsuit should not be granted.” Langhoff v. M. & P. du C. R. Co. 19 Wis. 489; Bessex v. C. & N. W. R. Co. 45 Wis. 483.

Vhether, upon all the facts within the observation of the deceased, she reasonably came to the conclusion that she could cross the tracks of the street railway company, we cannot know, except from the testimony of the boy Harold Wold, and his estimate of distances may not be entirely accurate; and in the rain and darkness the deceased may not have been able to judge accurately. Without commenting upon the evidence, we think, under the facts and circumstances disclosed, that it was a question for the jury to say whether the deceased was driving directly across Fourth street, or directly down it towards the approaching car, and that the court could not properly say, under the evidence, as a matter of law, that it was negligence which ought to prevent a recovery for her to attempt to cross the tracks, about thirteen feet in width, at an estimated distance of two rods in advance of a single-horse street car, proceeding at a very moderate pace. The evidence, in many respects, is uncertain and confusing; and the case is one peculiarly for the experience and practical knowledge of a jury, to weigh and give proper effect to the evidence and draw just inferences and conclusions, in view of all the facts and circumstances of the case. We do not think that the evidence shows clearly and decisively that the deceased was guilty of contributory negligence, so as to justify a nonsuit on that ground, and for these reasons the judgment appealed from must be reversed.

By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.

Newman, J., took no part.  