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

*December 6, 1911*

January *9, 1912.*

*Street railways: Killing of boy on 'trade: Gross negligence: Excessive speed,: Questions for jury: Duty to fence trade: Oontribw- - tory negligence: Failure to loole for car: Special verdict: Form*„ *of questions. , ' ■*

1. In an action for death of a hoy-who was struck by an electric car-while crossing defendant’s street railway, track, where a claim that defendant was guilty of gross negligence rested wholly on the alleged excessive speed.of the car-, it is *held*as matter of v law that the evidence (stated -in ¿he opinion) would not have ■ warranted a finding of gross negligence and that the trial court properly withdrew that question from the jury.

2. Sec. 1810, Stats. (1898), requiring every railroad corporation to erect and maintain on both sides of every portion of its road (depot grounds excepted) good and sufficient fences, has no application to the track of a street railway wholly within the limits of a public highway.

3. Where a boy fifteen years old, entirely familiar with the situation of the street railway track on a suburban highway, was struck and killed by an electric car while attempting to cross such track without looking to see whether a car was coming, although if he had looked he would have seen that the car was , dangerously near, he was guilty of contributory negligence as a matter of law.

4. When it is claimed that a person was guilty of a specific omission (in this case failure to look for a car before entering upon a street railway track) which can be said as a matter of law to ■constitute contributory negligence, it is not error to require the jury to find in their special verdict the specific concrete fact which will either conclusively establish or negative con- ! tributory negligence, instead of submitting the question as to such negligence in the ordinary general form.

Appeal from a judgment of tbe circuit court for Milwaukee county: OereN T. Williams, Circuit Judge.

*Affirmed.*

Action brought by plaintiff, .as administrator, to recover ■damages íor tbe death of bis minor son, who was run over and killed by one of defendant’s cai^ Tbe defendant owned and *662operated a single street-oar track on the east side of what is called Howell road, which runs nearly north and south from the southern limits of the city of Milwaukee. The rails extend about four inches above the roadbed, and the ties are flush with the roadbed except in certain unfilled places, thus making that part of the highway occupied by the track impassable for vehicles. Chicago road is a public highway in the town of Lake, runs in a southeasterly direction, and diagonally intersects Howell road a short distance south of the southerly limits of the city of Milwaukee. The Y-shaped piece of land between the two roads south of their intersection is irregular in outline. Eor a considerable distance east of the track it is hilly, but becomes more level in the vicinity of the track; and close to and along the east side of the track, about a foot and a half from the east rail, there is a ditch, and the ground between this ditch and within a foot and a half from the east rail is about four feet higher than that over which the track runs, and forms what the witnesses refer to as an embankment in front of and along the east side of the track. Hpon this rise or bank, east and within about a foot of the track, there were weeds and grass which grew to a height of about five feet.

On September 6, 1909, which was shown by the evidence to have been a bright and clear day, between 9 :30 and 10 o’clock a. m., the deceased, a boy fifteen years of age, and three other children, were in the fields east of Howell road picking apples. At the time in question the children were walking in a northwesterly direction along the Chicago road. The deceased, in order to cross Howell road and avoid going in a roundabout way past the intersection of the two roads, followed almost in a straight line through the Y-shaped piece of land between the two roads, crossed the ditch and walked up the bank and upon the track, and was struck by a north-bound car and instantly killed. The point where the boy was run over was located by the witnesses to be about 300 feet south *663•of'tbe intersection of tbe two roads; and tbe parties stipulated that tbe distance between themorljh end of wbat is known ns tbe overhead bridge crossing tbe Chicago & Northwestern Railway Company’s track on Howell roád, and tbe point where 'the Chicago road intersects with Howell road, was '749.50 feet.

.. Tbe plaintiff set ont two causes "of action, one charging tbe ■defendant with ordinary negligence, tbe other with gross negligence. Tbe answer denied liability as ■ to both canses of action. At tbe close of tbe evidence tbe court refused to submit to tbe jury tbe question of gross negligence. Upon tbe ■charge of ordinary negligence tbe jury found (1) that tbe car which came in collision with deceased, was not run at a reasonable rate of speed from the top of tbe bill at tbe subway to tbe point of collision; (2) that tbe motorman kept a proper lookout while descending the bill to tbe point of collision; (3) that be rang tbe gong upon tbe car and yelled to the deceased before tbe collision; (4) that be attempted to ■stop tbe car by setting tbe brake before tbe collision; (5) that tbe fender on tbe car was not dropped at'or before tbe collision; (6) that tbe failure to run the car at said time and place at a reasonable rate of speed was due to a want of ordinary care on tbe part of tbe defendant; (7) that tbe failure to drop tbe fender on tbe car before tbe collision was due to a want of ordinary care on tbe part of tbe defendant; (8) that tbe defendant was guilty of a want of ordinary care in tbe ■operation of tbe car between tbe top of tbe bill on Howell .■avenue and tbe point of collision, which was tbe proximate cause of tbe death of deceased; (9) that tbe deceased entered upon tbe track in front of tbe car without looking to tbe ■south to ascertain whether or not a car was approaching; (1Ó) that just as deceased took tbe last step which would bring him within tbe path of tbe car it was so near and running at such a rate of speed as to make tbe attempt to cross in front obviously dangerous unless "the speed of tbe car *664should be reduced; (11) that if deceased bad looked to the south just as he took the last step which brought him within the path of the car he would have seen that it was dangerously near and that a collision would probably result unless the speed of the car was reduced; (12) that the failure of the deceased to look to the south just before he entered upon the track proximately contributed to the collision; and (13) that plaintiff sustained damage in the sum of $1,800.

Erom a judgment entered upon such special verdict dismissing the complaint on the merits the plaintiff appealed.

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 Dyhe. Rose-crantz, Shaw & Van*Dylce, and oral argument by *J ames D. Shaw.*

ViNje, J.

The charge of gross negligence, in so far as there was evidence tending to sustain it, rested wholly upon the alleged excessive rate of speed of the car. If there was no credible evidence to show that it was run at a greatly excessive rate of speed, then the court properly refused to submit to the jury the question of gross negligence, otherwise not. From the intersection of the defendant’s track with the Chicago & Northwestern railroad to the point of collision, a distance of about 450 feet, there was a down grade of from three and one-half to four per cent., going north. The testimony on the part of the plaintiff with reference to the speed of the car was substantially as follows: The witness Matz, a boy thirteen years old, who was in an adjoining field playing catch with another boy, said the car ran awful fast — not much faster than it was usually run there — “it was running what I would term overspeed.” Emma Henke, a thirteen-year-old sister of deceased, who was standing in the Chicago *665road, said tbe car was running fast. Tbe witness Gerling was driving a team north on Howell avenue. Tbe collision took place just as tbe car passed bim and be estimated tbat its speed was sixty miles an hour. He testified, however, to several concrete facts which, if true, utterly destroy tbe value of bis estimate as to tbe speed of-the car. He said be first noticed tbe car at tbe railroad crossing, 450 feet from tbe point of collision; tbat be was driving at tbe rate of six miles per hour, and tbat be drove about 150 feet from tbe time be first noticed tbe car at tbe railroad crossing till tbe collision occurred. If tbe car traveled 45Ó feet while be traveled 150 feet, it traveled three times as fast as be did, or eighteen miles an hour. In another place, in giving bis estimate of tbe relative rate of bis speed with tbat of tbe car, be said tbat before be could go fifty feet tbe car went 150 feet. Tbe defendant’s testimony was to tbe effect tbat tbe car ran at a speed of from fifteen to sixteen miles per hour.

Tbe only testimony tbat would warrant a finding of grossly excessive speed is G-erling’s estimate of sixty miles per hour. Tbat estimate is in our judgment nullified by bis other testimony as to bow far tbe car traveled from tbe time be first saw it till tbe collision occurred, and bow far be traveled during tbe same time. He could easily locate tbe car at tbe railroad bridge or crossing and be could quite accurately judge tbe distance be traveled from tbe time be first saw it .there till it overtook bim, as well as tbe rate of speed at which be was driving. It is true tbe evidence shows tbat tbe car ran about 300 feet after it struck deceased before it stopped. This fact, in the absence of explanatory evidence, would raise a strong presumption of excessive speed. *Coel v. Green Bay T. Co., ante,*p. 229, 133 N. W. 23. But it-was clearly shown tbat tbe motorman practically collapsed when tbe collision occurred and thereafter made no effective effort to stop tbe car, which was running on a down grade.

Erom the railroad crossing to tbe point of intersection of *666Chicago and Howell roads, for a distance of 750 feet, there were no highway or street crossings. The track was located on one side of Howell road and the rails so elevatéd above its surface that there was practically no travel on that portion of the road occupied by the street-car track. The situation, therefore, was such that quite a high rate of speed could properly be maintained at the place of collision. The deceased, when he suddenly emerged from behind some bushes and tall grass, was only about six feet from the track. The evidence is undisputed that the motorman then sounded the gong, yelled to him, and set the brake. At that time there was no power on, but the car was going down grade, and was only from thirty to thirty-five feet away from him. No conduct on the part of the motorman as to the operation of the car' would sustain a finding of gross negligence. In our opinion, therefore, the trial court was justified in withdrawing that question from the jury.

It is strongly urged by plaintiff’s counsel that the trial court erred in not submitting to the jury the question of defendant’s duty to fence its track; claiming, as we understand it, that if the track had been fenced the deceased would not have been upon it. The complaint alleged that Howell road was a public highway. The answer admitted that allegation. Upon the trial vthe parties stipulated that defendant’s track was wholly within the limits of Howell road. The track was therefore wholly within the limits of a public highway, and sec. 1810, Stats. (1898), requiring every railroad corporation to erect and maintain on both sides of every portion of its road (depot grounds excepted) good and sufficient fences, does not apply — were it otherwise applicable to defendant’s track.

As will be seen from findings 9 and 12, set out in the statement of facts, the jury found that the deceased entered upon the track without looking for an approaching car, and that his failure to look proximately contributed to the collision. Findings 10 and 11 also emphasize the contributory negli*667gence of deceased. He was a boy about fifteen years old, bad been brought up in that immediate locality, and was thoroughly familiar with the situation of defendant’s track at the place of' the accident. At the time he crossed from the Chicago road to the Howell road he was walking in a northwesterly direction, and there is some evidence to show that he intended to join in, or observe, the game'of catch between the witness Matz and the other boy. However that may be, there is abundant evidence to sustain, the finding that he entered upon the track without looking for a car. Such conduct, under the circumstances, was contributory negligence as a matter of law. *Lockwood v. Belle City St. R. Co.*92 Wis. 97, 65 N. W. 866; *Cawley v. La Crosse City R. Co.*101 Wis. 145, 77 N. W. 179; *S. C.*106 Wis. 239, 82 N. W. 197; *Ryan v. La Crosse City R. Co.*108 Wis. 122, 83 N. W. 770; *Wills v. Ashland L., P. & St. R. Co.*108 Wis. 255, 84 N. W. 998; *Tesch v. Milwaukee E. R. & L. Co.*108 Wis. 593, 84 N. W. 823; *Stafford v. Chippewa Valley E. R. Co.*110 Wis. 331, 85 N. W. 1036; *Goldmann v. Milwaukee E. R. & L. Co.*123 Wis. 168, 101 N. W. 384; *Morice v. Milwaukee E. R. & L. Co.*129 Wis. 529, 109 N. W. 567.

But it is urged it was error to submit questions 9 to 12, inclusive, permitting the jury to find the concrete facts constituting the contributory negligence, instead of submitting the usual question, namely, Was deceased guilty of a want of ordinary care that contributed to his death ? The submission of the latter question would have adequately covered the issue of contributory negligence. But when it is claimed, as here, that the deceased was guilty of a specific omission, namely, to look for a car before entering upon the track, and where such omission can be said as a matter of law to constitute contributory negligence, then there is no error in requiring the jury to find the specific concrete fact which will either conclusively establish or negative contributory negligence. Had the usual question been submitted, the court, upon defendant’s request, would have been required to instruct the jury, *668under tbe circumstances in tbis case, that if deceased entered upon the railway track without looking for a car he was guilty of contributory negligence and they must answer the question in the affirmative. Indeed, by submitting the issue in the form it was submitted, all conduct on the part of deceased, except that of a failure to look, was excluded from the consideration of the jury in determining the question of his contributory negligence. This form would seem to be favorable to plaintiff rather than otherwise. It certainly cannot be held to be prejudicial.

A number of other errors, not. relating to gross negligence nor the contributory negligence of deceased, are assigned. Since the finding of contributory negligence renders them immaterial, they will not be discussed.

*By the Court.*— Judgment affirmed.