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

*December 5,*1911

January *9, 1912.*

*8treetrraUways: Injury to person on trade: Duty of motorman: Wanton or reckless conduct: Inadvertence.*

Upon discovering a person in a position of imminent peril on the track in front of an electric car the motorman was charged with the duty of averting such peril so far as lay in his power; and he cannot he held to have been free from wanton recklessness on the ground that, after such discovery, his failure to stop the car was due to inattention to duty and that his state of mind was that of inadvertence or neglect.

Appeal from an order of the circuit court for Milwaukee county: W. J. Turner, Circuit Judge.

*Dismissed.*

The appeal is from an order granting a new trial.

*659Bor the appellant there was a brief by *Van Dyhe, Rose-crantz, Shaw & Van*Dyhe, and oral argument by *James D. Shaw.*

Bor tbe respondent there was a brief signed by *Rubin <&*Lehr, attorneys, and W. *B. Riibin*and *J. Elmer*Lehr, of counsel, and oral argument by IB *B. Riibin*and *II. B. Walms-ley.*

TimliN, J.

In this action, brought to recover damages on the ground of gross negligence, there was a special verdict submitted containing, among other things, the following question:

> “Did the motorman run said car into the crowd of persons upon such highway and tracks in wanton and reckless disregard of human life and limb?”

-The jury answered this question No, and the court granted a new trial because in reference to this question he had instructed the jury: "

> “If you find that after the motorman discovered that the plaintiff was in a position of imminent peril the motorman then failed to stop the car by reason of inattention to his duty, and that his state of mind was that of inadvertence or neglect, you cannot find that the motorman in failing to then stop his car was guilty of wanton, wilful, and malicious conduct.”

The instruction was misleading and therefore erroneous. It affirms that after attention is aroused by the discovery that plaintiff was in a perilous position and that the peril was imminent, that is to say, instantly or suddenly impending, and notwithstanding this the motorman failed to stop the car, .although he had the power to do so, still if this failure was by reason of inattention to his duties, .and his state of mind was that of inadvertence or neglect, the jury “could not” find the motorman guilty of wanton or wilful or malicious conduct. This presents a puzzling metaphysical conception. After attention is aroused and ordinarily stimulated to the *660utmost by tbe discovery of imminent peril impending over a fellow man, and tbe discoverer bas control of tbe engine of destruction and is charged with tbe duty to avert tbis impending peril so far as lies in bis power, may be lapse into inattention, inadvertence, and neglect, and so failing to take measures to avert tbe peril excuse bimself from wanton recklessness ? Tbe assumption in tbe instruction that tbe motorman bad discovered tbe peril and its imminence negatives inattention. Tbis discovery and tbis knowledge aroused attention and is only compatible with attention. Knowledge that tbe peril was imminent, and inattention or inadvertence during tbe instant between tbe discovery, wbieb implies knowledge, and tbe swiftly impending consequences, is entirely too fine-spun a metaphysical theory to submit to an ordinary jury without misleading consequences. Tbe ordinary principles of humanity and tbe rules of law peremptorily require attention during such swift and short crisis. That attention should be aroused by knowledge, and that there should exist at tbe same time or instantaneously thereafter inattention and inadvertence under such circumstances, and that tbis inattention should absolutely prohibit tbe jury from further inquiry into tbe wanton character of tbe act or omission, if not erroneous because it describes an impossible mental condition, is at least too subtly metaphysical for use in tbe ordinary practical affairs of life. Tbe charge might well be understood as affirming that one can absolutely and by a rule of law absolve bimself from liability for tbe more grievous tort by interposing a tort of less degree between tbe first tort and its impending consequences. Needless to state there is no such rule of law. Tbe court properly granted a new trial on tbis ground.

*By the Court.*— Tbe appeal is dismissed.