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

*December 6, 1911*

January *9, 1912.*

*Street railways: Injury to person crossing track: Contributory negligence: Special verdict: Inconsistency: Changing -findings: Unnecessary questions: Court and jury: Appeal: Review.*

1. It is, as a matter of law, a want of ordinary care to step upon a railway track without looking both ways and listening for a car, and doing so at the last opportunity therefor in case of any reasonable probability, from the viewpoint of one so circumstanced, that a car is in dangerous proximity.

2. *Tesch v. Milwaukee R. R. & L. Co.*108 Wis. 593, and *Grimm, v. Milwaukee R. R. & L. Co.*138 Wis. 44, distinguished.

3. Plaintiff, waiting on a corner for a street car, saw it coming about a block away and started to run to the place where it would stop on the farther side of the street crossing. To reach such place he would have to cross both tracks of the street railway. After going about half the distance and reach*669ing the first rail of the tracks, he looked and saw the car about half a block away, but did not look long enough to see how fast it was coming. Thinking he had time to cross both tracks and reach the stopping place of the car by the time it arrived there, he proceeded at a walk without looking again at the car, although he heard rumbling on the track. Just as he was about to step beyond the last rail he was struck and injured by the car. When he entered upon the second track the car was but a few feet away, and it ran but a few feet after the collision before coming to a full stop. The jury found (6) that plaintiff’s failure to look for the car just before entering on the second track proximately contributed to his injury, but also answered in the negative the questions (7) whether, when he entered upon that track, the car was so near and running at such a rate of speed that a person of ordinary care in his position should have anticipated that a collision with the car would result unless its speed should be materially reduced, and (8) whether in entering upon that track as he did he was guilty of a want of ordinary care which contributed to his injury. *Held,,*that the trial court did not err in changing the answers to the latter questions from “No” to “Yes,” and in giving judgment for defendant on the verdict as changed.

*4.*The sixth finding above mentioned was a finding of efficient contributory negligence and, the jury having found both ways on that issue, the verdict as rendered would not support a judgment for plaintiff.

*5.*When, from the evidence upon any issue of fact, the truth of the matter is so manifest as to leave no reasonable ground for a difference of opinion, it is the duty of the trial judge, if requested, to decide it, and whether requested or not he is justified in so doing. When that duty arises it is a judicial duty and the court has no discretion in the matter.

■6. The decision of the trial court in a considerate discharge of that duty will not be disturbed on appeal unless clearly wrong from the viewpoint of the appellate court, due heed being given to the trial judge’s more favorable opportunity to reach a right conclusion.

7. The questions submitted for a special verdict should not be more numerous than is necessary to eovér, singly, all material issuable facts which are controverted on'the evidence; but the submission of mere unnecessary questions will not, except in an extreme case, constitute harmful error,

Appeal from a judgment of the circuit court for Milwaukee comity: ObRew T. Williams,-Oircuit Judge.

*Affirmed.*

*670Action to recover compensation for a personal injury. Plaintiff was struck by a street car and injured. The accident happened in daytime on a street where there was little travel. He went from his place to a near-by shop to deliver a garment, intending to take the street car on his way back. There was a double-track line on the street. After doing his errand he lingered inside the shop, keeping watch for the car he desired to take. It was to come from the right on the farthest track. He had a plain view of the track for the distance of a block or more away. His location was in a corner building with a corner entrance. From a window in the rear end of the shop he saw the car coming a block away and immediately proceeded to reach the point where he was to take passage. He knew the car would make the crossing before stopping, requiring him to travel in straight lines twice the width of the street, about 130 feet, or in a diagonal line about 100 feet. He assumed he would need to hurry and so started on a run in the shorter direction. After going about one half the distance and reaching the first rail of the near-by track, he looked for the coming car and observed it about half a block away. He did not look long enough to see how fast it was coming, but thought he had time to reach the opposite side of the next track and the point where the car would stop by the time it reached such place. He proceeded then at a walk without taking further observation of the car. He heard rumbling along the track but proceeded regardless-thereof. After traveling about one half the remaining distance and being about to make the last step which would place him on the far side of the track the car was coming on and out of its reach, it struck him. When he was but a few feet from the car he stepped in front of it. The motorman saw him as he approached the track and supposed, for a time, he-would make the crossing or observe the car and keep out of its pathway. When there was about fifty feet deft the motorman saw there was danger and then did all he could to stop-*671The jury found on the evidence that the motorman was not able to prevent tbe accident because the appliance for stopping the car was out of repair; also found that ordinary care was not exercised to signal the approach' of the car and that, defendant’s want of ordinary care proximately produced the injury. As to plaintiff’s conduct the jury found that his failure to look in the direction of the coming car before entry upon the second track proximately contributed to his injury; 'that when he stepped upon the second track the car was not so near and running at such rate of speed that a person of ordinary care, circumstanced as plaintiff was, should have anticipated that a collision with it would result unless the speed thereof were materially reduced; and that plaintiff was not guilty of want of ordinary care proximately contributing to produce the injury. Other findings were made which, together with those referred to, would have entitled plaintiff to judgment, if the verdict, either as made by the jury or as changed by the court, did not convict plaintiff of fatal contributory negligence. The court on motion changed the two findings before referred to on that subject made by the jury in favor of the plaintiff, to findings in favor of the defendant and rendered judgment accordingly dismissing the complaint with costs.

For .the appellant there was a brief signed by *Rubin & Lehr,*attorneys, and *W. B. Rubin*and *Horace B. Walmsley,*of counsel, and oral argument by *Mr. W. B. Rubin*and *Mr. Walmsley.*

For the respondent there was a brief by *Van Dyke, Rose-crantz, Shaw •& Van Dyke,*and oral argument by *James D. Shaw.*

MARSHALL, J.

Counsel for appellant cite with confidence *Tesch v. Milwaukee E. R. & L. Co.*108 Wis. 593, 84 N. W. 823; *Bain v. N. P. R. Co.*120 Wis. 412, 98 N. W. 241 ; *Grimm v. Milwaukee E. R. & L. Co.*138 Wis. 44, 119 N. W. *672833; and *Sparks v. Wis. Cent. R. Co.*139 Wis. 108, 120 N. W. 858, to support their contention that the trial court was manifestly wrong in concluding, — with aid of the jury finding that appellant failed to look in the direction of the coming car before entering upon the second track, proximately contributing to his injury; and notwithstanding their finding that a person of ordinary care, circumstanced as he was just before he stepped upon the second track, would not ordinarily have anticipated that the car would strike him unless the speed thereof was materially increased, — that appellant should have so anticipated and was guilty of fatal contributory negligence, and in changing the findings accordingly.

Neither of the cited cases establishes the principle contended for by appellant. They are to the effect that if one purposing to cross a street railway track uses his senses of sight and hearing both ways at a point where a person of ordinary care wouhj naturally and reasonably expect to observe an approaching car in such proximity and under such circumstances that it might probably reach the contemplated place of crossing before he could make it, and neither hears nor sees one and then proceeds, within his calculation in that regard, he is not guilty of a want of ordinary care by holding to his course unless an approaching danger is thereafter brought efficiently to his attention; that is, having so listened or looked, or both, in case of there being opportunity therefor, such a person may proceed without taking another observation; but in neither case was it intended to invade the rule that to step upon a railroad track without looking both ways and listening for the dangerous proximity of a car, and doing so at the last opportunity therefor in case of any reasonable probability, from the viewpoint of one so circumstanced, of the dangerous proximity of a car, is want of ordinary care as a matter of law. The exception to that rule contended for so as to fit the facts of this case, would fatally invade it, — destroy a doctrine as regards the duty in such cases that has become elementary in the law of negligence.

*673The instances relied on were very exceptional, and decided, as they were, because exceptional. Care has to be constantly exercised in administering the law of negligence, not to fence in a principle intended to furnish a guide for trial courts, so far as one is feasible, by such numerous new exceptions, and extensions of old ones to accommodate new situations, or old ones viewed through the vista of a changed conception of man’s duty to man and man’s duty of self care, as to destroy the rule itself. Such a method of administering the law would rob it entirely of its vaunted, and properly administered, real scientific character, making it a mere method of compulsory arbitration and vindicating the claim sometimes made, that in the law of negligence each case is a law unto itself.

What has been said, keeping in mind that here the appellant started to run in the first place because the car was so near, showing that quick movements were thought to be necessary to enable him to seasonably reach his place for boarding the car; that when he looked before entering upon the first track, though he had, from the time he first looked, been going on a-run, presumably, twice as fast as at a deliberate walk, and had traversed, perhaps, two thirds the required distance to clear the far track, the car had made one half the distance to his point of crossing; and the fact that he only stepped twice or three times, taking no more than a second or two, after he entered the pathway of the car before it struck him, and the still further fact that the car only went a few feet after the collision before coming to a full stop, — one can but appreciate how very foreign the cited cases are to the one in hand.

In the first case the person looked and did not see any car, though there was a clear view for some 150 feet, except for a part of the distance where there was interference from a standing car, within which area of interference a car ran from a point beyond the clear space in the brief period between the observation and one made a moment or two after. There was *674no car dangerously near when tbe first view was taken and no opportunity to see one thereafter before tbe collision.

Tbe second case did not involve a crossing accident.

In tbe third case tbe person was not a pedestrian, — that is an important element here. He bad about eighty feet to go after observing a car 900 feet or more away and before reaching bis point of interference with tbe track a stop was necessary to take on several passengers. He was occupied from tbe time be saw tbe car till tbe collision in turning with bis horse and sleigh, which movement caused tbe sleigh to engage tbe track when it was immediately struck.

Tbe last case did not involve a crossing accident.

So it will be seen that neither of tbe citations has even a remote bearing on this case. In each of two, under tbe peculiar circumstances, there was room to reasonably infer that tbe injured person might fairly, after performing tbe duty to look, have come to tbe conclusion that be could enter and clear tbe track before dangerous approach of a car. In one instance no car was in sight at all and tbe man only bad some forty feet to go, while in the other tbe person bad about eighty feet to travel while tbe car traveled about eleven times that far, and bad to make, as tbe observer bad reasonable ground to believe with certainty, a stop to take on several passengers, which of itself would give time to safely make tbe contemplated movement. Even under those peculiar circumstances, an exception to tbe rule of look and listen before entering upon tbe track was not easily found.

Here tbe appellant supposed, as we have seen, at tbe start, be would need to burry to make tbe crossing. His second observation ought rather to have confirmed than to have negatived that view, yet be relapsed to a deliberate wall;; with tbe car only half a block away, be having traveled at tbe most some two thirds bis distance since seeing it a block away, and that too without taking any view to see at what speed tbe car was moving. Evidently, appellant was thinking only of get*675ting to the place for-boarding the car in time, not of keeping ont of its pathway. He seems to have depended entirely upon the motorman not to obstruct his pathway.

Counsel present the case on the part of complainant as if,, had the court not changed the answers, plaintiff would have been entitled to judgment, overlooking the fact that, in answer to the sixth question, the jury found that his failure-to take a second look for an approaching car proximately contributed to his injury, not appreciating that the finding was-not, -merely, that such failure contributed to the injury, but, did so proximately. We must assume the trial court instructed the jury respecting the significance of the term “proximately.” Involved therein was the element of reasonable anticipation, making the omission fatal negligence. In other words, amplifying the finding, it is to the effect that appellant failed to look in the direction of the coming car just before entering upon its pathway at such time and in such circumstances that a man of ordinary care should reasonably have apprehended that his conduct might probably endanger his personal safety. It was a finding of efficient-contributory negligence and as plainly so as the answer which the court changed acquitting appellant of such negligence. In other words, the jury found both ways on the important issue, so that in no event could a judgment have been based thereon in favor of appellant.

Little need he said on the subject discussed at some length-respecting under what circumstances the court should decide an issuve of fact raised by the pleadings. It has no discretion-in the'matter one way or the other in the finality. If the case warrants such a disposition, then the judicial duty arises to act if challenged in respect to the matter in a proper way, and justifies it whether requested or not. The duty arises only when the truth of the matter, in the judgment of the court, is so manifest from the evidence as to leave no reasonable-ground to find otherwise. Whether such situation exists in. *676any instance where the question is raised, is strictly of judicial cognizance, and as plainly so as any duty which a judge has to perform under his oath ofoffice. The impatience manifested, now and then, because of an exhibition of judicial stamina which enables one to promptly, firmly, and considerately perform that duty, is entirely out of place. Such impatience, often leading to harsh criticism, springs from a false conception of our judicial system, or a disregard of it, for some reason or other, which operates, from a proper viewpoint, to turn the finger of criticism upon the false conceptor. The system is grounded on the written law, — placed there among the fundamentals by vote of the people when they acted in the formation of the government; where it must remain and be vindicated on all proper occasions till removed in the same considerate, significant manner of its adoption, or as therein authorized.

The trial judge, in this case, evidently approached the performance of his duty to act on the motions to change the verdict, with full appreciation of such duty. That he discharged that duty considerately cannot be doubted. That trial administrative efforts of that nature are in an environment more favorable for a right conclusion than is afforded by reading the printed record, has been said over and over again, and not too often. The very nature of the situation, sound public policy, and established principles of law as well, require that trial judges in deciding such matters should have the encouragement of consciousness that the result of their efforts will not be disturbed unless clearly wrong from the viewpoint of the appellate court, due heed being given to such trial judge’s more favorable opportunity to determine the matter.

In view of the foregoing, no efficient reason is perceived for disturbing the decision changing the answers. The trial court may well have thought the finding of contributory negligence against appellant, in answer to a question which did not comprehensively disclose to the jury the effect of it, was *677tbeir most intelligent unbiased conclusion., and with that undisturbed and undisturbable as it was, in view of the undisputed fact that appellant stepped in front of the car when it was almost to him and he plainly heard the noise of its coming, — that a judgment acquitting him of contributory negligence could not have any foundation in the evidence.

Complaint is made because of the number of -questions submitted to the jury. According to a long line of decisions there was no harmful error committed in that field. That is all that need be said. That the trial court did not follow the frequent advisory admonitions of this'court, there is some room to claim. To closely follow the scheme of the Code, as many times explained by this court, is to win renown in trial jurisdictions. The verdict was composed of thirteen questions. All issues covered by the pleadings, of which there was evidence for consideration by the jury, could have been covered, singly, by six or seven questions. The additional number tended to confuse, and possibly did so, resulting in the inconsistency in the verdict we have referred to. Every material issuable fact controverted on the evidence should be covered, each by its appropriate question, framed to present it clearly and with as few words as practicable. As a rule, every additional question, either covering a mere evidentiary matter or a controverted fact in issue in a second form, or splitting up such an issue into minor features, tends to defeat the very purpose of the special verdict law. However, it would take an extreme case of mere -unnecessary questions to constitute harmful error. That such is the case, however, should not promote inattention to the -proper framing of verdicts.

*By the Court.*— The judgment is affirmed.