#### Vetter, Administrator, Appellant, vs. Southern Wisconsin Railway Company, Respondent.

*September 16*

October *5, 1909.*

*Street railways: Collision with vehicle near trade: Duty to loolc and listen for car: Contributory negligence: Question of law: Special verdict: Inconsistent 'findings: Changing answer.*

1. The question of contributory negligence is or may he a mixed question of law and fact, but when facts are found in a special verdict showing contributory negligence without room for conflicting inferences, the conclusion of law necessarily follows, and the court may properly change the answer to another question whereby the jury finds that there was no contributory negligence.

2. In an action for death of a person caused by collision between his wagon and a street car which came from behind, findings in a special verdict, supported by the evidence, that before his team entered upon the track or went so near that the car could not pass without striking his wagon the deceased did not look or listen for the approach of the car from the rear, and that by the exercise of ordinary care and prudence he could have seen the car in time to have avoided the accident, establish the contributory negligence of the deceased and are not nullified by a further finding that he was not guilty of such negligence.

S. A person driving on the highway is bound to look and listen for the approach of a street car before going so near the track that a car cannot pass without striking his wagon; and it is immaterial in such a case whether or not he intends to drive upon or across the track.

Appeal from a judgment of the circuit court for Dane county: James O’Neill, Judge.

*Afirmad,.*

This action was brought by the administrator to recover damages for the alleged negligence of the defendant- causing the death of plaintiff’s intestate. The negligence alleged is in the careless operation of defendant’s car and the failure to warn the deceased of the approach of said car. The answer denies generally the allegations of the complaint and alleges contributory negligence of plaintiff’s intestate. The *297ease was submitted to tbe jury and tbe following verdict returned :

“(1) At wbat rate of speed was defendant’s car moving at tbe time of tbe. accident ? *A.*Eight miles per hour.

“(2) At wbat rate of speed was tbe deceased driving bis team at tbe time of tbe accident? *A.*Three and one-balf miles per hour.

“(3) After turning from Emerald street into Parle street and while approaching tbe place of accident, was: tbe bell or gong of tbe defendant’s car sounded? *A.*Yes.

“(4) Did tbe motorman try to stop tbe car as soon as it was apparent that there might be a collision ? *A.*Yes.

“(5) Was tbe motorman guilty of any want of ordinary care in tbe operation of bis car at tbe time of tbe accident ? *A.*Yes.

“(6) If you answer tbe last question ‘Yes,’ then was such want of ordinary care tbe proximate cause of tbe death of tbe deceased? *A.*Yes.

“(7) Did tbe deceased, before bis team entered upon the track or went so near it tbat tbe car could not pass him without bitting bis wagon, look and listen for tbe approach of a car from the rear? *A.*Uo.

“(8) Could tbe deceased, in tbe exercise of ordinary care and prudence, have seen tbe approaching car in time to have avoided tbe accident? *A.*Yes.

“(9) Was tbe deceased guilty of any want of ordinary care which contributed to tbe accident ? *A. No.*

“(10) In case tbe court should be of tbe opinion that tbe plaintiff is entitled to recover, at wbat sum do vou assess bis damages? *A.*$6,000.”

Before tbe special verdict was submitted to tbe jury plaintiff objected to questions Eos. 1, 2, 4, and 7 for tbe reason tbat they did not call for a response to any issue raised by tbe pleadings, but called for a finding of an evidentiary character, and also requested tbe court to submit a question, to be numbered *3-},*as follows: “If your answer to tbe third question is ‘Yes,’ then wbat distance was the motorman from deceased’s vehicle at tbe time tbe bell or gong was sounded? ” *298And also requested, -that the court substitute for question/ *No.l*two questions as follows:

“No. *1.*Was deceased, just before the accident, intending to drive upon or across the track of the defendant ?

“No. *I-}.*If you answer the last question ‘Yes,’ then did deceased, before nearing or entering upon said track, look, and listen for the approach of a car from the rear ? ” — ■

which requests were denied and due exceptions taken.

The usual motions were made for judgment on the verdict and to change the answers to questions in the. ver diet. The-court changed the answer “Yes’’ to question No. 5 to “No,” and changed the answer “No” to the ninth question to “Yes,”' and granted the defendant’s motion for judgment on the verdict dismissing the complaint. Plaintiff moved for a new-trial, which was denied, and judgment was rendered for the defendant dismissing the complaint, from which this appeal was taken.

For the appellant there was a brief by *Miner & Elver,*and. oral argument by *F. M. Miner.*

Eor the respondent there was a brief by *J ones &*Bchubring,: and oral argument by *B. W. J ones.*

KeRwiw, T.

The accident complained of occurred on South Park street in the city of Madison, between Erin street and the city limits. South Park street is a macadamized street with cement curbs, practically level, and running in a. northerly and southerly direction. It is thirty-six feet wide from curb to curb, with a street-car track in the center and a space of fifteen and one-half feet between the rail and the-curb. Commencing at a point about seventy-five feet from the city limits the track of the defendant begins to curve to-make tire turn onto Oregon road, somewhat narrowing the-space between the rail and the east curb of the street, so that at the city limits this space is only about nine feet eight inches wide. Erin and Emerald streets meet South Park *299street at right angles. The block between Erin and Emerald streets is about 316 feet long, and the block between Erin street and the city limits is 162 feet. Defendant’s street-car track runs on Emerald street, turns on South Park street, and runs southerly on Oregon road. The greater part of the-block between Erin and Emerald streets is vacant and practically unobstructed, so that one driving along South Park street between Emerald and Erin streets can look for some-distance up Emerald street.

On the day in question, about 3 o’clock, the deceased was driving a team of horses attached to a broad-tired lumber wagon with a box thereon south along the east side of the-street between Emerald street and the city limits, sitting on-a high seat, with the reins around his body over his shoulder. The street between him and the city limits, as well as between-him-and Emerald street, was unobstructed. While thus driving his team, one of the defendant’s cars turned from Emerald street onto South Park street. There is evidence tending-to show that when the car was within less than thirty feet of' deceased he drove onto or close to the track and directly out again, but not soon enough to prevent a collision between the-hind wheel of his wagon and defendant’s car, which collision produced the injury complained of.

The jtrry found by their answers to the seventh and .eighth-questions that before deceased’s team entered upon the track or went so near that the car could not pass without striking his wagon, he did not look and listen for the approach of a car from the rear, and also that he could, by the exercise of' ordinary care and prudence, have seen the approaching car in time to have avoided the accident. These findings are-fully supported by the evidence and entitle the defendant to-judgment on the verdict unless their effect be nullified by the-ninth finding of the special verdict, which finds that the deceased was not guilty of any want of ordinary care which contributed to the accident. *Dummer v. Milwaukee E. R. &**300*L. Co.*108 Wis. 589, 84 N. W. 853; *Tesch v. Milwaukee E. R. & L. Co.*108 Wis. 593, 84 N. W. 823; *Morice v. Milwaukee E. R. & L. Co.*129 Wis. 529, 109 N. W. 567; *Cawley v. La Crosse City R. Co.*101 Wis. 145, 77 N. W. 179; *Hogan v. Winnebago T. Co.*121 Wis. 123, 98 N. W. 928; *Hanlon v. Milwaukee E. R. & L. Co.*118 Wis. 210, 95 N. W. 100; *Stafford v. Chippewa Valley E. R. Co.*110 Wis. 331, 85 N. W. 1036; *McClellan v. Chippewa Valley E. R. Co.*110 Wis. 326, 85 N. W. 1018.

The court changed the answer to the ninth question from “ETo” to “Yes,” and this ruling is complained of. The answers of the jury to the seventh and eighth questions found the facts which established the contributory negligence of the plaintiff. It is true that contributory negligence is or may be a mixed question of law and fact, but where the facts are found or are undisputed showing contributory negligence and there is no room for conflicting inferences upon the established facts, then the conclusion of law necessarily follows. The court was therefore clearly right in changing the answer to the ninth question to correspond with the facts found by the jury in the seventh and eighth questions. *Wanzer v. Chippewa Valley E. R. Co.*108 Wis. 319, 84 N. W. 423; *St. Paul B. Co. v. Kemp,*125 Wis. 138, 103 N. W. 259; *Hogan v. C., M. & St. P. R. Co.*59 Wis. 139, 17 *N.*W. 632; *Martin v. Bishop,*59 Wis. 417, 18 N. W. 337; *Fick v. C. & N. W. R. Co.*68 Wis. 469, 32 N. W. 527, *Rowley v. C., M. & St. P. R. Co.*135 Wis. 208, 115 N. W. 865; *Hogan v. Winnebago T. Co.*121 Wis. 123, 98 N. W. 928; *Rahr v. Manchester F. A. Co.*93 Wis. 355, 67 N. W. 725; *Krause v.*Busacker, 105 Wis. 350, 81 n. W. 406.

Error is assigned because of refusal to submit the following question in lieu of question Ela 7 submitted by the court:

> “Was the deceased just before the accident intending to •drive upon or across the track of the defendant *% .*If you answer such question, ‘Yes/ then did the deceased, before nearing or entering upon the track, look and listen for the approach of the ear from the rear ? *”*

*301We think there was no error in the refusal to submit this question. The fact that the decease'! was within the zone of danger when struck was undisputed, and he was hound to look and listen before entering the place of danger, and it was entirely unnecessary to submit to the jury what the deceased was intending to do just before the accident.

Some criticism is made upon the instructions and failure to instruct respecting contributory negligence, but we find no prejudicial error in this regard. The facts constituting contributory negligence were fairly submitted to the jury and found against the plaintiff. Therefore the defendant was entitled to judgment.

It follows that the judgment must be affirmed.

*By the Court.*— The judgment of the court below is affirmed.