#### Raasch, Administrator, Appellant, vs. Milwaukee Electric Railway & Light Company, Respondent.

*October 30*

November *19, 1912.*

*Street railways: Collision with vehicle crossing track: Gross negligence: Direction of verdict: Positive and negative testimony.*

1. In an action against a street railway company for death of plaintiff’s intestate, claimed to have been caused by gross negligence of a motorman whose car collided with a milk wagon on the step of which the deceased was riding, it is *held*that the evidence (showing that the gong was rung and that efforts were made to stop the car) did not warrant a conclusion of gross negligence, and that a verdict for defendant was properly directed.

2. The mere negative testimony of one witness that he did not hear the bell nor see any effort to stop the car, is not sufficient to justify a reversal of the decision of the trial court based on positive testimony to the contrary.

Appeal from a judgment of the circuit court for Milwaukee county: E. C. Eschweileu, Circuit Judge.

*Affirmed.*

For the appellant the cause was submitted on the brief of *W. K. Frawley & T. F. Frawley.*

For the respondent there was a brief by *Van Dylce, Rose-*cra/rdz, *Shaw & Va/n*Dylce, and oral argument by *Qlarke M. Rosecrantz.*

WiNslow, C. J.

The plaintiff’s intestate was driving a horse attached to a milk wagon southward on Twentieth avenue in the city of Milwaukee at about 6 a. m. July 1, 1908. The wagon was covered and the intestate was standing on the westerly or right-hand step of the wagon. Just as the wagon crossed defendant’s northerly track, running east and west on Greenfield avenue, one of defendant’s street cars, west bound, ran into the rear of the wagon, tipping it over, and causing the death of the intestate. The plaintiff claims that the evidence was such as to justify the conclusion of gross negligence on the part of the defendant’s motorman, but the trial court *171Reid to the contrary and directed a verdict for defendant at tlie close of the plaintiff’s evidence. It is not claimed that there is any ground of recovery save the ground of gross negligence. The question presented on this appeal is whether there was error in the direction of a verdict for defendant. The testimony as to the speed of the car varied from six or seven miles to fifteen or twenty miles per hour. The motorman testified that he first saw the milk wagon when his car was about the middle of the block, *i. e.*about 150 feet east of the wagon; that he at once put on/the brakes, rang the gong, and put on tjie reverse current; that the brakes did not take hold well and the wheels slipped on the rail because it was dirty in spots. Another motorman, who was on the front platform of the car at the time, corroborated this testimony fully. Two disinterested witnesses, who were on the sidewalk, one directly opposite the car and the other some 200 feet distant, testified positively to the ringing of the gong, and they also testified to the fact that the car slowed up at once, and that they saw the motorman putting on the brakes; while a third passerby testified to the slackening of the speed and the putting on of the brakes. In addition to this, the weight of the evidence is to the effect that the car had nearly reached a stop before it struck the wagon.

As opposed to this mass of evidence, which entirely excludes the idea of wanton or reckless disregard of life on the part of the motorman, there is the testimony of one witness for the plaintiff, who stood on the sidewalk some 200 feet away, and who testified that he did not hear the gong nor see the motorman attempt to stop the car, and of another witness, a block further away, who thought the speed of the car was about the same all the way until the wagon was struck. If the motorman sounded the gong as soon as he saw the wagon and attempted to stop the car at once, there can be no reasonable claim of gross negligence, even if in the exercise of due care he ought to have seen the wagon earlier.

*172The mere negative testimony of one witness who testified that he did not hear the hell nor see any effort to stop the car cannot he deemed sufficient to justify this court in reversing the decision of the trial -court, especially when that decision is given the weight and deference to which it is entitled.

*By the Garni.*— Judgment affirmed.