Opinion
January 7, 1953 —
February 3, 1953.
APPEAL from a judgment of the circuit court for Milwaukee county: OTTO H. BREIDENBACH, Circuit Judge. Affirmed.
The cause was submitted for the appellant on the brief of Sydney M. Eisenberg of Milwaukee, and for the respondent on the brief of Shaw, Muskat Paulsen, attorneys, and John G. Quale and John F. Zimmermann of counsel, all of Milwaukee.
Action to recover damages for personal injuries sustained by plaintiff while attempting to board a streetcar owned and operated by defendant, a common carrier of passengers.
Defendant's streetcar was stopped at a street corner in the city of Milwaukee for the entry and discharge of passengers. The car was operated by only one employee who acted both as motorman and ticket taker. It had two doors, the front one, where the motorman stands, for the entry of passengers and a rear door for their exit. There were prominent signs on the outside of both the front and back of the car reading "Front Entrance Only Safety Car." On the side of the car next to the rear door was an arrow pointing to the front end and the words "Front Entrance Car." The outside of the rear door was marked "Out."
The car involved in the accident was eastbound. Plaintiff came from the north side of the street, passed to the rear of the car and attempted to board it by the rear exit. Several people were then leaving the car by the rear door and some of them testified that no one got on at the rear door except the plaintiff, who made her attempt after the departing passengers had stepped out. The plaintiff testified that five or six passengers got on by the rear door and she followed them. She was not corroborated in this. It is undisputed that the step and the door work automatically and that after plaintiff got her foot on the step the door closed, the step folded up trapping her foot and the car started forward. Plaintiff was pulled along with it a few feet but was seen by the passengers who had just come out of the car, and they notified the motorman who stopped the car at once, but not before plaintiff had sustained the injuries for which she brought this action. The motorman testified that he had not seen plaintiff or any other person using the rear door for an entrance, and that a signal light informed him that the rear door was closed before he started the car.
The case was submitted to the jury by a special verdict whose first question was:
"Question 1. When the defendant's motorman started the streetcar in motion, did he know that the plaintiff was attempting to board the streetcar at the rear exit?" The jury answered the question "No."
If question 1 was answered "Yes" the jury was instructed to say whether the motorman was negligent in starting the car and whether negligence so found was causal. Since the answer to question 1 was "No" the other questions were not answered. The jury found the plaintiff was negligent in attempting to board the car "at its rear exit door" but that such negligence was not an efficient cause of her injuries.
Defendant moved for judgment upon the verdict dismissing plaintiff's complaint. The motion was granted and judgment entered accordingly on June 3, 1952. Plaintiff has appealed.
Plaintiff's first contention is that the court erred "in failing to permit the jury to determine whether the plaintiff was a passenger or a trespasser." If plaintiff deemed the question material a request for a question on that subject should have been made. There was no such request and no objection was made to the special verdict without it. We have repeatedly stated that it is counsel's responsibility to request the trial court to incorporate in the special verdict the questions which they want answered and at such times we have directed attention to sec. 270.28, Stats., providing:
"When some controverted matter of fact not brought to the attention of the trial court but essential to sustain the judgment is omitted from the verdict, such matter of fact shall be deemed determined by the court in conformity with its judgment and the failure to request a finding by the jury on such matter shall be deemed a waiver of jury trial pro tanto." Smith v. Benjamin (1952), 261 Wis. 548, 554, 53 N.W.2d 619; Hilker v. Western Automobile Ins. Co. (1931), 204 Wis. 1, 231 N.W. 257, 235 N.W. 413; Nimits v. Motor Transport Co. (1948), 253 Wis. 362, 364, 34 N.W.2d 116, approved in Stellmacher v. Wisco Hardware Co. (1951), 259 Wis. 310, 48 N.W.2d 492.
If omission from the special verdict of the question which plaintiff would now like to have answered was error, it was not the error of the court, nor does it constitute grounds for reversal. The statute supplies the answer in conformity to the judgment.
Plaintiff submits, too, that question 1 asks the jury to find only whether the motorman had actual knowledge of plaintiff's presence whereas he might be negligent if he should have known. What we have said in the preceding paragraphs is equally applicable to this contention. If counsel was not satisfied with the question as it stood, it was his right to request one more satisfactory to him. He may not stand by, await the outcome, and if it is unfavorable then, for the first time, raise the objection. Nimits v. Motor Transport Co., supra.
Plaintiff submits that she cannot be found guilty of negligence as a matter of law for attempting to come aboard the car through the rear exit. As we read the special verdict and the judgment, it appears to us that judgment was entered in favor of the defendant not because of plaintiff's negligence (which the jury found not to be a cause of her injury) but because no negligence was found against defendant's motorman.
Entirely apart from any supposed insufficiency in the form of the special verdict, the record shows that the plaintiff was familiar with the cars on this line, she attempted to board this one through the door at the other end of the car from the one which she was directed to use, despite prominent signs warning her not to do so, and the defendant's employee did not know of her presence or her attempt when he started the car. In the absence of proof that the motorman knew that Mrs. Fondow was coming aboard through the rear door and acquiesced in her purpose, Mrs. Fondow did not gain the status of a passenger, nor impose on the defendant that high degree of care for her protection which a common carrier owes to its passengers, by attempting to board the streetcar through a passage not only unauthorized but even forbidden for that purpose. The jury made an express finding that the motorman did not know of Mrs. Fondow's attempt when he started his car. With that finding there fails her contention that the defendant owed her the protection due a passenger.
We cannot agree with counsel in his charge that the verdict is perverse, contrary to law, and contrary to the evidence, nor can we consider this a case for discretionary reversal and new trial in the interests of justice, authorized by sec. 251.09, Stats.
By the Court. — Judgment affirmed.