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

*March 19*

April *5, 1910.*

*Street railways: Killing of passenger: Negligence of motorman: Direction of verdict.*

1. A person who left a street car and then returned and hoarded it again after it had started, for the purpose of getting a shovel which he had negligently left behind, but without informing any one of that purpose, had no right, even if he was still to be considered a passenger, to demand that the car stop before it reached the next stopping place.

:2. Negligence of the motorman is not shown by the fact that he increased the speed of the car to about six miles per hour while such a person was standing in a place apparently free from danger, on the front platform or vestibule, holding on to the railing of the door, and reaching into the car for his shovel, although in some way, when the speed of the car was increased, the person fell from the platform and was killed.

'3. Great diligence is required of a motorman in the performance of his duties, but the very nature of his duties prevents him from keeping a close watch in the rear.

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

*Affirmed.*

This is an action to recover damages for the death of one Joseph Miscewski (plaintiffs decedent), caused, as is alleged, by the negligence of defendant’s employees. A verdict for the defendant was directed by the trial court and the plaintiff appeals.

The facts, stated most favorably to the appellant, are as follows: Miscewski, the deceased, was a Polish laboring man, fifty-two years of age, and of average intelligence. At about 6 o’clock p. m. October 26, 1907, he was a passenger on one of defendant’s street cars in Milwaukee, carrying with him his shovel, and he alighted from the car as it reached the end of the line, and started toward his home. After going 100 feet or more he recollected that he had forgotten his shovel *518and lie started lack towards tie can. Meantime tie trolley-lad leen reversed and tie ear lad started on its return trip. Miscewski jumped on tie rear platform of tie moving car after it lad gone two or tlree car lengths, walked rapidly past tie conductor, tlrougl tie car, slouted “Stop, I want my slovel!” in Polisl, stood in tie front vestilule witl lis lack to tie motorman, lolding on to tie railing on tie front door of tie car witl lis left land and reading around into tie car witl lis riglt land for lis slovel, wlicl was lying on a seat, wlen tie motorman applied more electricity, in-, creasing tie speed of tie car to about sis miles an lour, and in some manner Miscewski fell off from tie platform, striking tie pavement witl lis lead, and receiving injuries from wlicl le died. His slovel was not removed from tie car.

*Scurry M. SUber,*for tie appellant.

*Glarke M.*Rosecrantz, for tie respondent.

Winslow, C. J.

We tlink tie verdict was properly directed. Uo negligence on tie part of tie motorman was proven. It is very lard to see low tie deceased can le considered as a passenger, wlen le returned to tie car and boarded it without informing any one of lis purpose; but, even conceding that le should properly be considered as a passenger, le certainly lad no greater rights than those of a passenger. His slovel lad been left in tie car by reason of lis own negligence. In boarding tie car to regain it le could at tie most demand nothing except that, wlen tie car reached its next regular stopping place, viz., at tie end of tie block, le be let off. He lad no riglt to demand that it stop at once. Tie negligence alleged is that tie motorman put on more power- and jerked tie car, thus throwing him off. Had tie deceased been in a dangerous position, to tie motorman’s knowledge, wlen tie latter turned on tie power, there might be ground for tie claim; but the evidence is conclusive that wlen tie power was turned on tie deceased was *519standing apparently in a perfectly safe place, to wit, on the front platform or vestibule, holding onto' the railing of the door and reaching into the body of the car. There could he no reasonable inference that any injury would happen to a person in such a position merely by reason of an ordinary increase in the speed of the ear.

Great diligence is rightly required of a motorman in the performance of his duties; but the very nature of his duties necessarily prevents him from keeping anything like a close watch in his rear. In fact, he must, when his car is moving, keep a closé and practically unremitting lookout ahead, so that he may be able to control his car immediately upon the appearance of danger to any one. In these days of rapid transit, crowded streets^ and electrically driven cars of great weight, no other rule can be tolerated. Even if the motorman knew that Miscewski was on the car for the purpose of getting his shovel, the inference is just as reasonable as any other that he (the motorman) increased the speed of the car for the purpose of more quickly reaching the proper stopping place at the end of the block, where Miscewski might get off. In this act there could be no negligence, so long as Miscewski was standing in a place apparently entirely free from danger.

*By the Court.*— Judgment affirmed.