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

*April 10*

May *1, 1914.*

*Street railways: Injury to passenger: Negligence: Special verdict: Inconsistency: Liability: Cause of accident not established: Instructions to jury: Harmless errors: Reinstructing jury: Absence of counsel.*

1. Where, in an. action for injuries sustained in alighting from a street car, plaintiff’s claim was that the car suddenly started forward with a jerk and threw him off, and defendant claimed that the injury was the result of a voluntary attempt to alight while the car was in motion, findings hy the jury negativing both such claims were not inconsistent.

'2. Plaintiff, having in such case failed to show that defendant was negligent as claimed, was not entitled to recover; and it was not necessary, in order to sustain a judgment for defendant, that the true cause of the accident should be established. *SamulsJci v. Menasha P. Co.*147 Wis. 285, distinguished.

3. Error, if any, in an instruction as to the place at which plaintiff had a right to have the ear stopped was not prejudicial, because *192such instruction had no hearing on the finding that the car did not start forward with a sudden jerk.

4. Where counsel voluntarily leave court after the jury has been sent out to deliberate upon their verdict, the judge is under no obligation either to send or to wait for them before reinstruct-ing the jury or receiving their verdict; but if their attendance can be procured without unreasonable delay, it is better practice to do so.

Appeal from a judgment of tbe circuit court for Milwaukee county: Oscae. M. Feitz, Circuit Judge.

*Affirmed.*

Action for personal injury. On August 31, 1912, plaintiff was riding on a car of tbe defendant, and be claims tbat, as be stood on tbe step ready to aligbt, tbe car suddenly started forward witb a jerk and threw bim off. Tbe defendant claims tbat plaintiff voluntarily alighted while the car was in motion and thus sustained bis injuries. Tbe jury found (1) tbat plaintiff was not injured as a result of bis attempting to aligbt from tbe car while it was in motion;. (2) tbat tbe car was not suddenly jerked in such a manner as. to cause tbe plaintiff to be thrown to tbe pavement; (3) tbat no want of ordinary care on tbe part of tbe plaintiff proxi--mately contributed to produce bis injury; and (4) tbat plaintiff sustained damages in tbe sum of $1,550. Judgment in favor of the defendant was entered upon tbe special verdict,, and plaintiff appealed.

For tbe appellant tbe cause was submitted on tbe brief of’ *Schmitz, Wild & Gross*and *Peterson & Jackowska-Peterson.*

For tbe respondent there was a brief by *Van*Dyke, *Pose-er antz, Shaw & Van*Dyke, and oral argument by *J. D. Shaw.*

ViNje, J.

Plaintiff claimed tbat be rang tbe bell notifying tbe motorman tbat be desired to aligbt at tbe next regular stopping place, and that preparatory to getting off he-walked to tbe steps of tbe car and stood there bolding on to tbe side-bars ready to aligbt when tbe car should come to a full stop; tbat tbe car slowed up, but instead of coming to a *193stop it started forward with a sudden, jerk and threw him off. The defendant’s contention was that plaintiff voluntarily attempted to alight while the car was in motion and received his injury as a result thereof. The jury'found against both claims. It is urged that such findings are inconsistent. This would be so if the only possible ways of falling from a moving car were either by reason of a sudden jerk of the car or by voluntarily attempting to get off. There are other ways, however, and the jury evidently thought so when answering questions 1 and 2. The answer to question 2 defeated plaintiff’s right to recover, since it negatived negligence on the part of the defendant. Such answer is sustained by evidence. This is not a case, as plaintiff seems to think, where it is necessary, in order to sustain the judgment entered, to establish the true cause of the accident, for there is no recovery adjudged upon the verdict. Plaintiff fails to establish liability because the jury found the evidence did not show that defendant was negligent in the manner claimed. Oases, therefore, like *Samulski v. Menasha P. Co.*147 Wis. 285, 133 N. W. 142, where there was a recovery, cited to the effect that verdicts must rest upon probabilities and not bare possibilities, have no application.

There was some conflict or confusion in the evidence as to whether or not plaintiff rang the bell in time to have the car stopped at Ninth avenue or at Tenth avenue, and the court, upon the question of plaintiff’s contributory negligence, charged the jury:

> “In connection with this question you are instructed that the plaintiff as a passenger had no right to demand that the car should be, or expect that it would be, stopped to let him off, excepting when the car reached its regular stopping place, namely, at the end of the block.”

It is claimed by plaintiff that this instruction is erroneous because there was evidence to show the regular stopping place was at the beginning and not at the end of the block, and *194though given relative to the question of contributory negligence, which was found in favor of plaintiff, it had such a general bearing upon the entire case that the jury must have had it in mind in answering the other questions. Assuming, but not deciding, that it was erroneous, we cannot perceive what possible connection it had with, or bearing upon, question number 2, which found the car did not start forward with a sudden jerk. This was the only question resolved adversely to plaintiff. If it did not affect the answer to this question, as we hold it did not, plaintiff was not harmed by it even if erroneous.

The contention that the court erred in reinst'ructing the jury upon their request because the clerk’s minutes do not show that court was in session or open, but merely that the “jury returned into court,” though such return into court was as late as 11:10 p. m., is too trivial for serious discussion.

Counsel for plaintiff were not present when the jury was reinstructed. No duty devolved upon the court to send for them or wait their return. If counsel voluntarily absent themselves from court after the jury has been sent out to deliberate upon their verdict, the court is under no obligation to either send or wait for them before reinstructing the jury or receiving their verdict. Such a rule would in many cases seriously and needlessly hamper trial judges in the discharge of their duties. Where, however, their attendance can be procured without unreasonable delay, it is better practice to do so. *Meier v. Morgan,*82 Wis. 289, 52 N. W. 174; *Hurst v. Webster Mfg. Co.*128 Wis. 342, 107 N. W. 666.

*'By the Court.*— Judgment affirmed.