#### Canning, Respondent, vs. Chicago & Milwaukee Electric Railway Company, Appellant.

*March 15*

June *13, 1916.*

*Street railways: Negligence: Collision with vehicle: Special verdict: Sufficiency: Instructions to jury: Positive and negative testimony: Contributory negligence: Questions for jury: Witnesses: Competency: Physicians and surgeons: Appeal: Harmless error.*

1. Plaintiff drove out of an alley and started to cross a street from east to west in the middle of a block hut, seeing one of defendant’s street ears coming south on the west track, stopped his team so that the horses stood partly over the east track. The car stopped about forty feet north of him and he started his horses again, but the car also started and struck his wagon and injured him. The jury found that the motorman was not guilty of gross negligence in the operation of his car; that he could by the exercise of ordinary care have seen the plaintiff in time to have avoided the collision; and that such want of ordinary care was the proximate cause of plaintiff’s injuries. *Held,*that negligence of the defendant was sufficiently found.

2. Several witnesses having testified that they saw plaintiff stop, others that they did not observe him stop, an instruction as to the relative weight of positive and negative testimony was properly given.

3. The stopping of the car as stated might well be taken by plaintiff as an invitation to cross first even though the car had the right of way, and it cannot be said as matter of law that he was guilty of contributory negligence in attempting to cross ahead of the car.

*4494. Plaintiff having testified that he told the physician whom he consulted that he was unable to retain his urine, it was error to exclude testimony of the physician that plaintiff did not tell him so; but the error should not in this case work a reversal, there being other evidence which quite satisfactorily showed severe injury.

Appeal from a judgment of the circuit court for Milwaukee county: W. J. Tubwee, Circuit Judge.

*Affirmed.*

Action begun in the civil court to recover damages for personal injuries. About 5 o’clock in the afternoon of February 13, 1914, plaintiff was injured by being struck by one of defendant’s street cars while crossing Fifth street between Grand avenue and Wells street. Plaintiff was driving a two-horse express wagon. He stopped at Skiles bakery in the alley between Grand avenue and Wells street to load some bread boxes. He then drove out of the alley from the east and started to cross Fifth street to enter the alley on the west side of the street. When he was about on a line writh the sidewalk, as he sat on the seat of the wagon he looked north and south to see if any cars were approaching. There is evidence to the effect that he saw a car to the north coming south on the west track and stopped his team so that the horses stood partly over the east track; that as the car came to a dead stop about forty or forty-five feet north-of the alley he concluded that the motorman intended to let him across and started his team. The pavement was icy and he urged his horses rather sharply, as they could get better footing if going a little fast. The motorman started the car just after plaintiff started his horses and failed to give any warning. When plaintiff became aware that the car was approaching he was too far over the track to back off and therefore he tried to urge his team across ahead of the car. He failed to do this, and the car struck the wagon about the middle and threw plaintiff against the front of the can

The jury found: (1) That plaintiff was injured at the time and place alleged; (2) that the car stopped after it left Wells *450street and before it struck the wagon; (3) that the team stopped after it emerged from behind Skiles bakery and before the collision took place; (4) that the motorman was not guilty of gross negligence in the operation of his car; (5) that the motorman could by the exercise of ordinary care have seen the plaintiff in time to have avoided the collision; (6) that such want of ordinary care was the proximate cause of plaintiff’s injuries; (7) that the plaintiff could not by the exercise of ordinary care have seen or heard the approaching car in time to have avoided the collision; (8) that plaintiff was not guilty of any want of ordinary care which proximately contributed to his injuries; and (10) damages $1,898. From a judgment for plaintiff entered upon the special verdict, the defendant appealed to the circuit court. The circuit court affirmed the judgment of the civil court, and from a judgment entered accordingly the defendant appealed to this court.

For the appellant there was a brief by *Edgar L. Wood,*attorney, and *Bull &*Johnson, of counsel, and oral argument by *Mr. Wood.*

For the respondent there was a brief by Oliclcsman, *Gold & Corrigan,*and oral argument by *W. D. Corrigan.*

The following opinion-was filed April 11, 1916:

Vinje, J.

Error is assigned because the.special verdict did not properly submit the issue of defendant’s negligence to the jury. The fifth question covers that issue properly and is in form substantially as proposed by the defendant. It finds a want of ordinary care on the part of the motorman under the circumstances shown by the evidence. It is a verity that the car ran into the plaintiff. By negativing gross negligence the jury found that the motorman did not wilfully run into him. The collision, therefore, occurred through inadvertence on the part of the motorman. This inadvertence the jury finds to be his failure to observe plaintiff in time to *451avoid tlie collision, evidently relating to a time after lie stopped as found by tbe jury; and the jury find sucb failure to observe was due to a want of ordinary care, for bad be exercised sucb care be could bave stopped tbe car in time to avoid a collision. Tbe findings taken together amount to a finding that tbe collision occurred through a want of ordinary care on tbe part of tbe motorman. Sucb finding is sustained by tbe evidence. This want of ordinary care is found to be tbe proximate cause of plaintiff’s injury. Hence tbe negligence of defendant is sufficiently found.

Tbe court gave an instruction as to tbe relative weight of positive and negative testimony. In view of tbe answers given by tbe jury this became material only as it bore on question I, relating to plaintiff’s contributory negligence, and only in respect to whether or not plaintiff stopped as tbe jury found be did. Several witnesses testified that they saw him stop, others that they did not observe him stop. In sucb state of tbe evidence tbe instruction was proper.

It cannot be said as a matter of law tbat plaintiff was guilty of contributory negligence in attempting to cross ahead of tbe car. Tbe stopping of tbe car in tbe middle of tbe block and about forty feet away from him might well be taken by him as an invitation to cross first, even if tbe car did bave tbe right of way. His conduct was properly left to the jury to characterize as negligent or not.

Plaintiff after tbe accident consulted Dr. J. E. Purtell, who treated him for some time. Upon direct examination plaintiff, in testifying about tbe result of bis injuries, said among other things tbat be was unable to retain bis urine and tbat when be visited Dr. Purtell about tbe 18tb of May be told tbe doctor about it, tbat is, about bis inability to retain his urine. Defendant put Dr. Purtell on the stand for the purpose of denying tbat plaintiff on tbe 18th of May or at any other time told him so. Tbe evidence was excluded on tbe ground tbat under sec. 4015, Stats. 1915, tbe doctor was dis*452qualified to testify as to what plaintiff told him. The exclusion of such evidence was error. Plaintiff opened the door for it on his direct examination when he stated what he told the doctor. Had he not done so, of course the doctor could not have testified on the subject against plaintiff's objection. In view, however, of other evidence which the jury was warranted in believing and which quite satisfactorily shows severe injury, we have reached the conclusion that the error does not demand a reversal of the judgment.

*By the Court.*— Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on June 13, 1916.