#### Parkes, Respondent, vs. Lindenmann, Appellant.

*March 5*

June *1, 1915.*

*Appeal: When new trial is “ordered" "by mandate: Dismissal of action for failure to bring to trial: Waiver of right: Appeal: Verdict, when disturbed: Bias of jury: Negligence: Emergencies: Automobiles: Collision loith pedestrian.*

1. If tlie mandate of the supreme court, applying it to the case in which it is made, necessitates a new trial or further proceedings in the court below, then such is the order of the supreme court rwithin the meaning of sec. 3072, Stats. 1913, irrespective of the form of the mandate. Thus, upon appeal from an order granting a new trial, the mandate “order affirmed” orders a new trial within the meaning of said section.

2. A party desiring to have an action dismissed because not brought to trial within a year as required by sec. 3072, Stats. 1913, must act seasonably. If he unreasonably stands by and causes the other party to incur expense which might be saved if he acted *102with reasonable promptness, he will he deemed to have waived the provisions of the statute.

3. A verdict approved by the trial court should not ordinarily be disturbed on appeal except in a clear case of error; but findings in such a verdict evidencing bias if not actual perverseness on the part of the jury may properly be considered as bearing upon the value of other findings therein.

4. Thus, where the plaintiff, after she had seen a moving automobile only a few feet away, stepped in front of it and was struck and injured, the bias or perverseness evidenced by a finding that a person of ordinary care would not have anticipated that a collision would probably result from moving in front of the automobile under such circumstances, has a bearing on the value of a further finding that the driver of the automobile should have anticipated that plaintiff would probably move in front of it.

5. In an emergency, where there is no time for the exercise of judgment and deliberate action upon it, a failure to take the best means to avoid an injury is not necessarily negligence.

6. Defendant, going north in an automobile and intending to turn to the east into a cross street, saw plaintiff standing two or three feet south of the south track of a street railway which ran on the cross street. She was waiting for an approaching car and stood about on a line with the east sidewalk of the north and south street. He was going not faster than six miles per hour and had reason to believe that he was within the line of her vision. He took a course by which he would pass to the west and north of plaintiff, and some three to seven feet in front of her, but when his automobile was about ten feet away she first saw it, became startled, and ran north in front of it. He at once turned southeast to go behind her and would have done so had she not immediately run to the south again in front of his car. When she did that he tried to stop and avoid her by heading his car north, but did not clear her and she was struck by the right fender. The car was stopped within two feet of where she was struck. *Held,*notwithstanding a verdict to the contrary, that defendant was not guilty of any negligence.

[Appeal 'from a judgment of the circuit court for Milwaukee county; W. B. Quinlan, Judge.

*Reversed.*

Action for personal injury sustained by being struck by defendant’s automobile. Upon a former appeal an order of the circuit court setting aside a verdict in favor of plaintiff on the ground that it was perverse and granting a new trial *103was affirmed. See *Parlces v.*Lindenmann, 148 Wis. 89, 133 N. W. 580.

When the ease was called for trial the defendant moved to dismiss on the ground that it had not been brought to trial within the year as required by sec. 3072, Stats. 1913. The motion was denied and the case tried. There is very little dispute as to the facts. On November 21, 1908, at about 1 o’clock in the afternoon of a clear day at Milwaukee, the plaintiff, a woman about fifty-five years of age, was struck by defendant’s automobile, a Buick weighing about 2,000 pounds, while waiting for an east-bound street car on the east side of Sixth avenue where it intersects National avenue. Sixth avenue runs north and south. National avenue runs east and west and has two street-car tracks on it. Plaintiff stood on a line with the east sidewalk of Sixth avenue and about two or three feet south of the south rail of the south car track waiting for a car from the west which was approaching and which she had signaled to stop. The defendant came north about in the center of Sixth avenue, and when just about at the intersection of the south line of National avenue exclusive of the sidewalk space he first saw plaintiff waiting for the east-bound car. lie then continued in a northeasterly direction át a speed of from four to six miles per hour and would have passed to the left and in front of plaintiff at a distance of from three to seven feet had she remained standing where he first saw her. When he was within ten feet of her she for. the first time, apparently, saw the automobile, though the evidence is that defendant had several times blown his horn as he approached National avenue. Upon seeing the automobile she stepped to the north and upon the south car track, whereupon he turned his automobile to the southeast to pass behind her. When she reached the middle of the car track she immediately made a few quick steps to the south in front of the moving automobile and was struck by the right fender of the *104car before defendant stopped it. Tbe jury found (1) that defendant ought in tbe exercise of ordinary care, in taking tbe line be took to pass to tbe north of plaintiff, to have anticipated that plaintiff would become startled and probably move in front of bis automobile; (2) that tbe plaintiff moved to tbe north from tbe place where she was waiting for tbe street car in consequence of becoming startled by reason of tbe northeasterly direction taken by defendant’s automobile; (3) that defendant failed to exercise ordinary care for tbe purpose of stopping bis car after it became apparent to him that plaintiff would move to tbe south and enter tbe path of bis car; (4) that defendant failed to exercise ordinary care in tbe handling of bis automobile when it became apparent to him that tbe plaintiff would move to tbe south; (5) that tbe defendant’s want of ordinary care as found was a proximate cause of plaintiff’s injury; (6) that plaintiff exercised ordinary care for tbe purpose of ascertaining if any eastbound automobile or other vehicle was dangerously near when she stepped towards and upon tbe car track; *(T)*that tbe plaintiff exercised ordinary care for tbe purpose of ascertaining if there was any east-bound automobile or other vehicle dangerously near when she moved to tbe south from upon tbe car track; (8) that a person of ordinary care would not have anticipated that as a result of moving to tbe south in front of tbe automobile, under tbe circumstances shown by tbe testimony, a collision with tbe automobile would probably result; (9) that no want of ordinary care on tbe part of tbe plaintiff proximately contributed to her injury; and (10) damages in tbe sum of $4,000. From a judgment entered upon tbe verdict in favor of plaintiff tbe defendant appealed.

For tbe appellant there was a brief by *Lorenz &*Lorenz, attorneys, and *James D.*Shaw, of counsel, and oral argument by *Mr. Shaw.*

For tbe respondent there was a brief signed by *Otjen & Otjen,*and oral argument by *H. H. Otjen.*

*105The following opinion was filed March 23, 1915:

Vinje, J.

The order of the trial court setting aside the verdict as perverse and granting a new trial was upon appeal affirmed by this court December 5, 1911, and a rehearing denied January 30, 1912. See 148 Wis. 89, 133 N. W. 580. In due course of time the *remittitur*was filed in the circuit court, and no claim is made that the costs were not seasonably paid. On December 23, 1913, the attorneys for plaintiff served a notice of trial upon defendant’s attorney, Christian Doerfler, placing the case on the January, 1914, calendar. February 3, 1914, the case was called for trial, and the present attorneys for defendant, who since the service of the notice of trial were substituted for Christian Doerfler, moved the court to dismiss the action on the ground that it had not been brought to trial within, a year as required by sec. 3012, Stats. 1913. That section provides:

> “In every case in error or on appeal in which the supreme court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceeding had thereon within one year from the date of such order in the supreme court, or in default thereof the action shall be dismissed, unless, upon good cause shown, the court shall otherwise order.”

Upon the former appeal the mandate read “Order affirmed,” and the trial court, then presided over by Judge TueNeb, reached the conclusion that the case did not come within the statute because neither a new trial nor further proceedings in the court below were ordered. The conclusion was an erroneous one, based upon a construction disregarding the substance as well as the evident intent of the statute. When a circuit court by an order grants a new trial and such order is affirmed on appeal by this court, the right to a new trial is established by a judgment of this court, irrespective of the form of the mandate. The words “Order affirmed,” applied to the subject matter to which they related *106in tbis case, could mean but one thing, namely, that a new trial was by tbe judgment of tbis court granted, and bence tbe cause, in order to comply with that requirement, must be and was remanded to tbe court below for further proceedings. It was not so expressly stated in tbe mandate, but its only rational interpretation meant that. In volume 158 Wis. there are no less than nine cases, found at pages 262, 337, 447, 475, 529, 539, 597, 619, and 626, respectively, in which tbe mandates have been merely tbe affirmance of orders, and yet each case bad to be and was remitted to tbe lower court for further proceedings. Counsel for defendant call attention to.three cases in which orders granting new trials were affirmed. In two, *Bearrs v. Sherman,*56 Wis. 55, 13 N. W. 869, and *Smith v. Champagne,*72 Wis. 480, 40 N. W. 398, tbe mandates were, “Tbe order of tbe circuit court is affirmed, and- tbe cause remanded for further proceedings according to law,” while in tbe third, *Allen v. Milwaukee,*72 Wis. 182, 39 N. W. 347, tbe mandate was merely “Order affirmed.” If tbe mandate, applying it to tbe case in which it is made, necessitates a new trial or further proceedings, then such is tbe judgment or order of tbis court irrespective of tbe fact that tbe words “and tbe cause is remanded for further proceedings according to law,” or their equivalent, are omitted.

It could not have been tbe legislative intent to make tbe necessity for further proceedings within tbe year depend upon tbe particular form of mandate used. To infer that is to infer that tbe legislature left it for tbis court to determine whether or not further proceedings were to be taken within tbe year. It did not do so. It was tbe legislative intent to expedite all cases in which, by force of tbe judgment or order of tbis court, further proceedings are necessary.

But it does not follow that because tbe order of tbe circuit court was based upon an erroneous conclusion it must therefore be reversed. If it can be sustained upon another ground it must be affirmed.

*107Tbe statute quoted is both drastic and mandatory. *Whereatt v. Ellis,*85 Wis. 340, 55 N. W. 407; *Christianson v. Pioneer F. Co.*101 Wis. 343, 77 N. W. 174, 917; *State ex rel. Mitchell v. Johnson,*105 Wis. 90, 80 N. W. 1104. But it bas been beld that tbe party for whose benefit it was enacted may by bis conduct waive its provisions. In *Whereatt v. Ellis,*85 Wis. 340, 55 N. W. 407, sucb waiver consisted in tbe party invoking tbe aid of tbe statute having paid tbe clerk’s fees, procured a return of tbe record, and taking proceedings inconsistent with bis claim that be was entitled to a dismissal. In *Raymond v. Keseberg,*98 Wis. 317, 73 N. W. 1010, there was beld to be a waiver because defendant, who asked for a dismissal, bad procured a return of tbe record, taken part in negotiations for a settlement lasting till too late to try tbe case within tbe year, and bad accepted and retained costs before tbe new trial began. In tbe present case there bad been mutual accommodations granted to or promised for tbe attorneys of both parties; some vague negotiations for an adjustment of tbe case bad been considered; and it is shown by fairly persuasive proof that plaintiff’s health was sucb, due to tbe accident, that it was not prudent to try tbe case earlier. But in addition to all this it appears that on December 23, 1913, plaintiff noticed tbe case for trial. True, defendant’s then attorney refused to accept service for tbe reason that be thought defendant would insist upon a motion for dismissal on tbe ground that tbe case bad not been retried within tbe year. But defendant made no sucb motion till tbe case was called for trial on February 3, 1914. In tbe meantime, by bis failure to seasonably move for tbe dismissal of tbe case, be induced and compelled tbe plaintiff to prepare for trial and to have her .witnesses there when tbe case was called, thus requiring her to incur labor and expense. A party desiring to take advantage of the statute must do so seasonably. If be unreasonably stands by and causes tbe other side to incur expense which might be saved if be acted with reasonable promptness, *108he must he deemed to have waived the provisions of the statute. In the present case we affirm the order refusing to dismiss the case upon the ground of unreasonable delay in making the motion to dismiss.

The verdict in the present case had the approval of the learned trial judge. Ordinarily under such circumstances it ought not to be disturbed on appeal except in a clear case of error. *Murdock v. B., D. L. & J. R. Co.*147 Wis. 100, 132 N. W. 979. Eor the purpose of determining how conscientiously a jury has sought to discharge its duty the whole verdict may be scanned, and the answers to the several questions, though none of controlling importance, may shed considerable light on the inquiry as to the presence or absence of bias on its part. In the present case the jury find, and are justified in finding, that when the automobile was about ten feet from plaintiff she first saw it and became startled and ran in front of it. It is clear that what may be termed an emergency situation existed or was thought to exist by both parties when plaintiff first moved north in front of defendant’s automobile. Under such circumstances a person is not held to the strict exercise of ordinary care, for there is no time for the exercise of judgment and deliberate action upon it. The evidence showed that from the time defendant first saw plaintiff till she was struck not more than ten seconds elapsed. Less than half of this was taken up-by the attempts of each to avoid the other. In such situations action is instinctive rather than deliberate, and for that reason a failure to take the best means of escape is not necessarily negligence. The jury properly applied this rule to plaintiff in answers to questions 2 and 9. Why they did not give defendant the benefit of it in answers to questions 3 and 4 is not apparent. It cannot be on the ground, that defendant showed any lack of diligence to avoid the collision, for as soon as plaintiff ran north he turned southeast to go behind ber, and would have done so had she not immediately run south again *109right in front of his car. When she did that he at once tried to stop and avoid her by heading his car north. He failed to clear her. The right fender of the car struck her, and the car was stopped within two feet of where she was struck. In the great majority of cases of impending collisions a person about to inflict injury is as anxious to avoid it as the person about to be injured. We find nothing in the evidence indicating a different condition in the present case.

As evincing the length to which the jury was willing to go in order to find favorably for plaintiff, the answer to question 8 serves as a good example. That question read: “Would a person of ordinary care have anticipated that as a result of moving to the south in front of the automobile, under the circumstances shown by the testimony, that a collision with the automobile would probably result?” The jury answered “No.” The circumstances shown by the evidence are that when plaintiff stepped south in front of the automobile it was moving to the east or southeast, and that she was only a few feet from it when she stepped in front of it. One might as well give a negative answer to the question, “May one reasonably anticipate a collision with a moving automobile by suddenly stepping immediately in front of it ?” These answers of the jury are adverted to for the purpose of showing that the present verdict, though approved by the trial court, has inherent evidences of bias if not actual perverseness. They therefore have a bearing upon the value of the jury’s answer to question 1, where they find that the defendant, in the exercise of ordinary care in taking the line he took to pass to the north of plaintiff, ought to have anticipated that plaintiff would become startled and probably move in front of his automobile. While this question is not the exact equivalent of an inquiry as to whether defendant was negligent in taking the course he did, we shall treat it as such, or rather we shall inquire and determine if defendant was negligent in attempting to pass in front of plaintiff.

*110When he first saw her he was about in the center of Sixth avenue, where the south' line of Rational avenue, exclusive of the sidewalk space, intersects it. She was then standing two or three feet south of the south rail of the south track on Rational avenue in a line with the east sidewalk on Sixth avenue. She was about twenty-five feet east of him and about fifteen feet north of him, standing waiting for an east-bound car. lie wanted to go east on Rational avenue about 100 feet to Lederer’s butcher shop and so continued in a northeasterly direction at a speed not exceeding six miles an hour, taking such a course that had plaintiff stood still he would have cleared her from three to seven feet. There is that variance in the estimates of the different witnesses.

It would seem to us that if a person could ever legitimately indulge in a presumption that a woman does not intend to move forward and upon a street-car track it is when she is standing beside the track waiting for an approaching car that is within half a block of her. Defendant saw that by proceeding at the speed he did he could pass to the west and north of plaintiff and on the side towards which she was looking and get out of the way before the street car reached her. She was a mature woman and it was broad daylight. The approach of an automobile in front of -her at a speed of only six miles per hour and driven by a grown man could not reasonably be anticipated to frighten her. Quite a different case would present itself were the speed of the automobile considerably greater. Six miles per hour on a smooth street is a slow speed for a car — a speed at which it is under perfect control, and but for the unexpected conduct of plaintiff defendant would have passed her unharmed. Many prudent chauffeurs deem it safer to pass in front than behind persons standing in the street. By so doing they pass in the line of vision of the persons standing and are less likely to frighten them, even though they come closer. Defendant had every reason to believe that from the time he entered Rational avenue he was within the line of vision of plaintiff where she *111stood waiting for tbe approaching car. He took a course that in all probability seemed to be outside of where she would be likely to be or go and yet where she would see him. That the fact turned out to be otherwise does not alter the case. He cannot be charged with prescience nor with reasonable anticipation of possible, but only of probable, results. Notwithstanding the approval of the verdict by the trial court, we have reached the conclusion that the evidence failed to establish any negligence on the part of the defendant.

In support of the motion there was a brief by *Otjen & Ot-*jen, attorneys, and *James T.*Drought, of counsel, and in opposition thereto a brief by *Lorenz &*Lorenz, attorneys, and *James D. Shaw,*of counsel.

*By the Court.*— Judgment reversed, and cause remanded with directions to dismiss the complaint upon the merits.

The respondent moved for a rehearing.

The motion was denied, with $25 costs, on June 1, 1915.