#### Lightfoot, Appellant, vs. Winnebago Traction Company, Respondent.

*November*17, *1904*

January *10, 1905.*

*Street railways: Personal injuries: Evidence:'Competency: Remarles of trial judge: Appeal and error: Exceptions: Negligence: Proximate oause: Contributory negligence: Instructions to jury: Agency: Imputed negligence.*

*■1.*In an action against a street railway company for personal injuries it appeared, among other things, that plaintiff, who was riding in a vehicle with a driver behind a wagon loaded with wood, turned onto defendant’s tracks, when a collision took *480place with one of its cars, whereby plaintiff was injured. The owner of the wood wagon and the driver of the team were both unknown to plaintiff or her companion, and she had no way of identifying the particular wood wagon in question. As to the height and width of such wagon plaintiff’s witnesses had only given estimates. *Helé,*that it was not error to allow a witness, called by defendant, who was familiar with wood wagons in common use, to testify to the height of an ordinary wood wagon. Such testimony was the best evidence the defendant could give under the circumstances.

2. In such case, it is not prejudicial error for the trial judge to remark, in overruling an objection to a question calling for the height of a wood wagon by actual measurement, that the fact that it was a wood wagon was the only information the jury had gotten from the testimony.

3. The appellate court will not review remarks made by the trial court on overruling an objection to testimony, where, while exception was taken to the overruling the objection to the testimony, no exception was taken to the language of the court.

4. In an action for personal injuries, the evidence, stated in the opinion, is *helé*to sustain a finding that want of ordinary care and prudence on the part of the defendant was not the proximate cause of plaintiff’s injury.

5. In an action for personal injuries it is not error to refuse 'a requested instruction, which consisted in stating the requisite conduct of a person “in the face of unexpected and deadly danger” where there was evidence tending to prove that such danger was created by such person.

6. Where the jury have found in favor of one party on a given question, no portion of the instructions to the jury on that question can be said to have prejudiced such party in its determination.

7. In an action for personal injuries received by collision with a street car, instructions to the jury on the-duties of a traveler, stated in the opinion, are *helé*to have informed the jury that the defendant was only responsible for the misconduct of its motorman, and not for the misconduct of others over whom it had no control.

8. In this state, the driver of a private conveyance is the agent of the person in such conveyance, and the driver’s negligence, if it contributes to the injury complained of by such person, will defeat the action, and it is not error to so instruct the jury.

9. Where the jury have found that the defendant’s negligence was not the proximate cause of the plaintiff’s injury, it is unnecessary to consider the question of contributory negligence.

*481Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BubNell, Circuit Judge.

*Affirmed.*

This is an action to recover damages for personal injury sustained by tbe plaintiff about 3 o’clock' in tbe afternoon of September 23, 1902, while riding in a single carriage, drawn by one horse, driven by her companion, by reason of coming in collision with one of tbe defendant’s street cars. It appears and is undisputed that Main street runs north and south in Oshkosh; that the defendant’s track is in that street at the place of collision, and for at least one block north and one block south of the same; that Washington street intersects with, and runs east from, Main street, and at right angles with it; that Algoma street intersects with, and runs northwest from, Main street; that the center of Algoma street is twenty-five or thirty feet north of the center of Washington street, at their respective intersections; that the particular locality of such intersections was the most traveled of any in the city, and was paved with vitrified brick, which caused much noise as vehicles passed over the same; that Main street north of such intersections was narrower than south of it; that at the time in question the plaintiff, with her companion, was driving north on the east side of Main street, toward such, intersections; that, upon reaching a point at or near the northwest comer of. Washington street, they .started west across the defendant’s track toward Algoma street; that while in the act of crossing the defendant’s track they were struck by one of the defendant’s cars coming from the north, and1 the plaintiff was badly injured. The answer was a general denial, and allegations of contributory negligence on the part, of the plaintiff and the driver. There is evidence on the', part of the plaintiff tending to prove that at the time they started to go across the track the streets at such intersections-, were full of teams, and that there was a wagon loaded with wood ahead of them, so high as to obstruct their view of the coming car. Issue being joined, and trial had, the jury, at *482tbe close of tbe trial, returned a special verdict wherein it was found (1) tbat tbe plaintiff was injured at tbe time and place alleged in tbe complaint; (2) tbat tbe defendant, through its employees, was guilty of a want of ordinary care and prudence in tbe operation of said car at tbe time of tbe accident; (3) tbat sucb want of ordinary care and prudence on tbe part of tbe defendant was not tbe proximate cause of tbe plaintiff’s injury; (4) tbat tbe gong was sounded on approaching tbe intersection of Main and Washington streets; (5) tbat tbe motorman tried to stop tbe car as soon as it became apparent to him tbat there would be a collision; (6) tbat tbe car was running, when it struck tbe buggy, eight and one-half miles per hour; (7) tbat tbe want of ordinary care and prudence on tbe part of tbe plaintiff, *or the driver*of tbe wagon in which tbe plaintiff was riding, contributed to produce tbe injury; (8) tbat they assessed the plaintiff’s damages at $2,000. From tbe judgment entered upon sucb verdict for $106.55 costs and disbursements as taxed, tbe plaintiff brings this appeal.

W. *H. Eaton*and *L. K.*Eaton, for tbe appellant.

For tbe respondent there was a brief by *Weed &*Hollister, and oral argument by *II. I. Weed.*

Oassoday, O. J.

Tbe verdict seems to b,e supported by evidence. Tbe question for consideration is whether there was any reversible error upon tbe trial.

1. One of tbe questions in controversy was whether there was contributory negligence on tbe part of tbe plaintiff, in failing to see tbe coming car in time to avoid driving onto the track immediately in front of it. Tbe evidence on tbe part of tbe plaintiff tended to prove tbat as she and her companion moved north on tbe east side of Main street, toward tbe place of collision, as stated, they drove immediately behind a largo wood wagon loaded with pine wood, from six to eight feet high and from six to seven feet wide; tbat they did not know *483whose wagon it was, nor who was driving tbe team. One of the plaintiff’s witnesses testified that be thought the wood wagon “belonged to some manufacturing establishment” in Oshkosh; and another, that he should judge that such wood wagon was at the time loaded with pinewood slabs, such as were got out by the Paine Lumber Company of Oshkosh; that he thought the wagon was sixteen feet long; that he “should judge it was the ordinary wood wagon used . . . on the streets by millmen delivering wood” in Oshkosh. In view of such testimony on the part of the plaintiff, we perceive no error in allowing the witness E. 0. Owens, on the part of the defendant, to testify that he had lived in Oshkosh thirty-five years, and had been engaged in the business of manufacturing sash, doors, and blinds for twenty-five years, and was familiar with the wood wagons used by the millmen in Oshkosh; that he had measured such wagons to find out their height; that such wagons in use by his company (Mc-Millen Co.), and such as were in usual use, were five feet high; that that company “used in their business wood wagons such as are commonly and ordinarily in use among millmen in the city of Oshkosh for delivering wood;” and that the highest of those wagons were five feet and four inches high, measuring from the ground to the top of the load, and about five feet wide; that such wagons were about the same as those used by the different manufacturers; that the loads driven by Paine Lumber Company, he should think, would be six or seven feet high; and that he supposed that the wood wagons of Morgan Company were about the same as those used by the McMillan Company. The owner of the wagon and the driver of the team were both unknown to the plaintiff and her companion. As appears, the plaintiff’s witnesses had only given estimates as to the height of the wagon. The defendant had no way of identifying the particular wood wagon in question. The best evidence the defendant could give, under the circumstances, was as to the height of an ordinary wood *484wagon in common use in Osbkosb. Snob seems to bave been tbe view of tbe testimony taken by tbe trial court in allowing, tbe defendant to sbow wbat was tbe beigbt of an ordinary wood wagon, and stating that snob was tbe only information, tbe jury bad got from tbe testimony that it was such wood, wagon. Counsel seem to think that tbe plaintiff was prejudiced by such remarks of tbe court on overruling tbe objection to tbe question calling for tbe height of such wood wagon by actual measurement. True, tbe court might bave used more guarded language, but we fail to perceive any reversible-error in such remarks of tbe court. Besides, it was only the-objection to tbe testimony that was overruled, and to which-exception was taken. No exception was taken to tbe language-of tbe court in ruling upon tbe question. It is hardly necessary to say that tbe case differs widely from tbe recent casein this court cited by *counsel*— Boyce *v. Wilbur L. Co.*119 Wis. 642, 645, 97 N. W. 563.

2. Error is assigned because tbe court refused to change tbe answer of tbe jury to tbe third question submitted from “No” to “Yes.” This is tbe important question in tbe case,, as here presented. By tbe second question tbe jury bad-found that tbe defendant was. guilty of negligence in tbe operation of tbe car at tbe time of tbe accident; and by tbe third question, that such negligence was not tbe proximate cause-of tbe plaintiff’s injury. Tbe question was peculiarly one of fact for tbe jury. Tbe argument of counsel seems to be *.that*tbe finding of tbe jury upon that question is only supported, by tbe testimony of Owens, already mentioned, and that such-testimony was incompetent, and should bave been stricken, out, as requested by tbe plaintiff. But as indicated, such testimony was competent. Besides, there was other testimony-tending to sustain tbe third finding of tbe jury. Several witnesses testified that tbe gong was being sounded as tbe car approached tbe crossing. Tbe motorinan on tbe car testified that as be came down tbe street be saw tbe wagon close to the* *485•track, and the horse and buggy, with the ladies in it, behind; and that they turned their horse and got onto the track seven ■or eight feet in front of the car. A passenger on the car testified that he noticed the wagon loaded with wood in front •of the carriage, and that the horse and'carriage, back of the wagon, turned north, and the horse came upon the track about ten feet ahead of the car. There is other evidence tending to prove that the ladies could have seen the approaching car before turning onto the track. Of course, if those on the car ■could, as they approached the crossing, see the ladies in the buggy notwithstanding the wood wagon, then the ladies could have seen the approaching car. We must hold that the evidence was sufficient to sustain the third finding of the jury.

3. It is claimed that the court committed numerous errors in charging the jury. Thirty exceptions have been taken to the charge. Such multiplicity of exceptions tends to weaken confidence in any particular exception. Only two of such exceptions relate to proximate cause. We perceive no error in either of them, and, as neither is mentioned in the brief of counsel, we assume they are not relied on. The only request of the plaintiff to charge upon that question, or any other, consisted in stating the requisite conduct of a person “in the face of unexpected and deadly danger,” and was clearly not applicable to a case where there is evidence tending to prove that such danger was created by the person in question.- We find no error in submitting the question of proximate cause.

4. Ten of such exceptions relate to the question whether the defendant was guilty of negligence in operating the car. On that question the court charged the jury that the burden of proof was on the plaintiff, and the jury found that the defendant was guilty of such negligence. The jury having-found in favor of the plaintiff on that question, it is obvious that no portion of the charge prejudiced the plaintiff as to the determination on that question. The court charged the jury *486on that question, however, not only as to the duties and obligations of the defendant and its motorman in operating the car, but also as to the rights, privileges, and expectation of the defendant and its motorman in so operating the car. In order that the jury might properly determine that question, the court also charged the jury as to the duties and obligations of those traveling on foot or in vehicles in streets where such cars were operated, and, among other things, that both parties were bound to use ordinary care and prudence under all the circumstances to prevent collision. Error is assigned because the court charged the jury:

> “A traveler upon a street crossing, desiring to cross the street car track there situated, has not the same right to require the speed of a car to be slackened, to enable him to pass over the track, as the person in charge of the car has to require him to give way to allow the car to pass.”

And then, after stating that it was the duty of a traveler about to cross a street car track “to look and listen for a coming car, and to perform that duty when and where he will have reasonable opportunity to render his efforts in that regard effective,” the court further charged the jury:

> “It is as much his duty, as a matter of law, to see an approaching car which is in plain sight and in dangerous proximity to the crossing, and not to negligently place himself in the way of it, as it is to look for the car. Testimony of a person or any number of persons that he or they, when approaching a street car track with a view of crossing it, looked along the track for a coming car, and did not see one, although a car was in plain sight, and so near the point of observation as to render an attempt to cross the track in front of it dangerous, is inconsistent with all reasonable probabilities.”

The manifest purpose of such instructions was to inform the jury that the defendant was only responsible for the misconduct of its motorman, and not for the misconduct of others over whom it had no control.

5. Error is assigned because the court further charged the *487jury upon tbe same question to tbe effect that, if tbe driver of tbe vehicle in question was guilty of any want of ordinary care and prudence at tbe time in question, tben tbe law imputes sucb negligence to tbe plaintiff, wbo was riding witb ber. In support of sucb contention counsel,cites numerous adjudications, both English and American. But this court held, twenty-seven years ago, in an opinion by Chief Justice RyaN, that “tbe driver of a private conveyance is tbe agent of tbe person in sucb conveyance, so that bis negligence, contributing to tbe injury complained of by sucb person, . . . will defeat tbe action.” *Prideaux v. Mineral Point,*43 Wis. 513, 526-531. Sucb ruling has been steadily adhered to during these many intervening years. *Otis v. Janesville,*47 Wis. 422, 2 N. W. 783; *Ritger v. Milwaukee,*99 Wis. 190, 197, 74 N. W. 815; *Olson v. Luck,*103 Wis. 33, 35, 79 N. W. 29. If tbe rule contended for is to prevail, it is for the legislature to say so.

6. Eive exceptions have been taken to tbe portion of tbe charge in submitting the seventh question to tbe-jury in respect to contributory negligence. Sucb portions of tbe charge were in line witb those already considered. On that question tbe jury were told that tbe burden of proof was on tbe defendant. Counsel contend that, under tbe charge of tbe court an’d the wording of that question, it is impossible to tell whether twelve jurymen concurred in finding tbe plaintiff or tbe driver guilty of contributory negligence. See *Lowe v. Ring, ante,*p. 370, 101 N. W. 698. But tbe view we have taken of tbe case makes it unnecessary to consider that question, or any of tbe exceptions taken to sucb portions of tbe charge, since tbe jury found that tbe defendant’s negligence was not tbe proximate cause of tbe plaintiff’s injury.

Other exceptions are without sufficient merit to call for consideration. We find no reversible error in tbe record.

*By the Court.*— Tbe judgment of tbe circuit court is affirmed.