Fitts v. Cream City R. Co.

Citation59 Wis. 323,18 N.W. 186
PartiesFITTS v. CREAM CITY R. CO.
Decision Date08 January 1884
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from county court, Milwaukee county.

H. H. Field, for appellant, Robert C. Fitts.

Winfield & A. A. L. Smith, for respondent, Cream City Railroad Company.

ORTON, J.

The county court granted a nonsuit at the close of the testimony of both parties. The rule for granting nonsuits in a case tried with a jury is correctly stated by the learned counsel of the appellant, “That a nonsuit should not be ordered when the evidence, giving it the most favorable construction for the plaintiff that it will possibly bear, tends to prove the facts necessary to a recovery.” Schoener v. Ins. Co. 50 Wis. 575; [S. S. C. 7 N. W. REP. 544;] Jucker v. Ry. Co. 52 Wis. 150; [S. C. 8 N. W. REP. 862;] Gower v. Ry. Co. 45 Wis. 182;Spensley v. Ins. Co. 54 Wis. 433; [S. C. 11 N. W. REP. 894.] The question of negligence of the defendant, or of contributory negligence of the plaintiff, is peculiarly a question for the jury where there is any evidence tending to show either. The court should not take the case from the jury where the evidence would warrant a verdict for the plaintiff. This principle is in consonance with the rule of this court, that a judgment will not be reversed on the ground that the verdict is against the evidence, if there is any competent evidence to sustain it, giving it the most favorable construction in favor of the verdict. To sustain these propositions, we need only refer to the authorities in the very full and able brief of the learned counsel of the appellant. To apply these principles a brief statement of the evidence is necessary.

In February, 1881, the plaintiff was driving along the open and traveled track of Clinton street, in the city of Milwaukee, with a horse and cutter. The street is paved and much traveled. There are two tracks or double track of a street railway of the defendant along this street, and at a point opposite the defendant's car barn there is a turn-table, with tracks or rails thereon at right angles, and one of these tracks leads to the car barn. The turn-table revolved in an iron rim, on the outer surface in which it turned. There were four notches--one on each side of the table--to fasten the turn-table in this rim, where the catch or latch just fits in when it is down. The catch or latch is from six to ten inches in length, an inch and a quarter or half in width, made of iron or steel, working on the table by a hinge, and held down and kept in place by its own weight only. At this time it was much worn and loose. This table was put down in 1876. Cars ran over it every six or seven minutes. Turn-tables so fastened are not now in use on other roads, and only one of the turn-tables of this kind on the defendant's road, and those now in common use are kept in place by working tightly, and are not easily moved within the rim or groove. Tables like this have been in common use, but have been superseded by the other plan. The traveled track of the street was over this table, and the plaintiff had driven over it before, but never saw the catch or latch out of place. The hinge was much worn, and had never been repaired, and it was liable to stand slanting, and to catch on to the runner of a sleigh passing over it. The plaintiff was driving, not very fast, and less than seven miles an hour, and while passing over this turn-table this catch caught in the runner of his cutter and caused the damage complained of. The catch was so out of place as to stand up considerably above the table.

The statute (section 1862, Rev. St.) which provides that street railways “shall be constructed upon the most approved plan for such roads,” is merely declaratory of the common law, and there can be no question but that it is the duty of a street railway company to construct such roads, and all the conveniences thereof, and to maintain them, by the use of the common and approved means, and so as at least to be no obstruction to the use of the street by or to the necessary convenience of the traveling public thereon. The statute in which the common-law duty is declared also provides that “every such road shall be subject to such reasonable rules and regulations as the proper municipal authorities may by ordinance from time to time prescribe.” But this does not confer the power upon the city to repeal this general law by ordinance, (Horn v. Ry. Co. 38 Wis. 463;Alton, etc., Horse Ry. Co. v. Deitz, 50 Ill. 210;) but if it did, there was no evidence that any such ordinance had ever been made.

The duty of using “the most approved plan” does not stop or cease with the original construction. If it were so, then there would be no duty to repair, or to adopt any new plan when the old one had been found by full trial and experience to be inadequate, insufficient, or dangerous. The most approved methods and plans must be maintained with a view to the public safety. The old plan might at the time of construction have been considered adequate and sufficient, and have been generally in use, but afterwards may have been as generally abandoned, because proved on trial not to be so, and a more approved plan had been adopted, as in this case. Can it be contended that it is not the duty of this company to also abandon such old and insufficient and dangerous plan, and adopt a safer and the more approved plan in general use? But aside from this special duty there is a continuing duty and obligation resting upon the company, in consideration of its use of the public streets, to consult all the time the safety and convenience of travelers thereon, consistent with the full enjoyment of its own privileges and franchises. The company has no greater right to the use of the street than the public, and it being thus a joint use of the street, neither the company nor the public has any right to make it dangerous for either in their proper use of it. “The care and skill to be exercised by the company in the construction and maintenance of their track in a public street are of much higher degree than would be imposed upon them under circumstances of a different character.” Mazetti v. Railroad Co. 3 E. D. Smith 98.

It is said that railroads are so much more dangerous than street railways that the degree of care required of them is greater. But if this complaint is true, even street railways may be dangerous to travelers on the public streets as well. The principle cannot be very different so far as the duty, care, and diligence of the company are concerned. Those who travel on the street have a right to suppose and presume that the turn-table of a street railway therein, and over which the travel is accustomed to go, is safe, and properly constructed and maintained. Alton, etc., Horse Ry. Co. v. Deitz, supra; Fash v. Third Avenue Ry. Co. 1 Daly, 148; 2 Thomp. Neg. 1232.

The true rule is laid down in Read v. Morse, 34 Wis. 315, in respect to the duty of a steam-tug...

To continue reading

Request your trial
22 cases
  • United States Smelting Co. v. Parry
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 6, 1909
    ... ... Monroe, 43 Conn. 36, 44; Beatty v. Gilmore, 16 ... Pa. 463, 468, 55 Am.Dec. 514; Fitts v. Cream City R.R ... co., 59 Wis. 323, 331, 18 N.W. 186; Zarnic v. Coal ... Co., 133 Wis ... ...
  • Mo. Pac. R. Co. v. Fox
    • United States
    • Nebraska Supreme Court
    • September 19, 1900
    ...properly constructed. The rule is well supported by a great many authorities, among which may be found the following: Fitts v. Railroad Co., 59 Wis. 323, 18 N. W. 186;Cross v. Railroad Co., 69 Mich. 363, 37 N. W. 361;Laughlin v. Railway (Mich.) 28 N. W. 873;Hayes v. Southern Pac. Co. (Utah)......
  • Missouri Pacific Railway Company v. Fox
    • United States
    • Nebraska Supreme Court
    • September 19, 1900
    ...properly constructed. The rule is well supported by a great many authorities, among which may be found the following: Fitts v. Cream City R. Co. 59 Wis. 323, 18 N.W. 186; Cross v. Lake Shore & M. C. R. Co. 69 Mich. 363, N.W. 361; Laughlin v. Street R. Co. 26 Am. & Eng. R. Cas. 377, 378; Hay......
  • Boss v. Northern Pacific Railroad Company
    • United States
    • North Dakota Supreme Court
    • May 25, 1888
    ... ... Pollard, 22 Wall ... 341; Detroit & M. R. R. Co. v. Van Steinburg, 17 Mich. 99; ... Sioux City & P. R. R. Co. v. Stout, 17 Wall. 657; Pa. R. R ... Co. v. Peters, 9 A. 318; Spooner v. Brooklyn ... S. J. & S. C. R. R. Co., 55 Cal. 596; C. B. & Q ... R. R. Co. v. Gregory, 58 Ill. 272; Fitts v. Cream City R. R ... Co., 18 N.W. 186; Ill. C. R. R. Co. v. Welch, 52 Ill. 183; ... Muldong v ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT