White v. Milwaukee City Ry. Co.

• Decision Date: 25 November 1884
• Parties: WHITE v. MILWAUKEE CITY RY. CO.
• Court: Wisconsin Supreme Court

61 Wis. 536

21 N.W. 524

WHITE

v.MILWAUKEE CITY RY. CO.

Supreme Court of Wisconsin.

Filed November 25, 1884.

Appeal from county court, Milwaukee county.

This action was brought by the plaintiff to recover damages for personal injuries alleged to have been received by her through the negligence of the defendant company, its agents and servants, while riding in one of its streetcars. The facts of the case are briefly as follows: The defendant operates two tracks of street railway, running north and south on East Water and Reed streets, in the city of Milwaukee. These streets abut each other at the Menominee river, and are connected by a swing-bridge across that river near the Union depot. The tracks are laid upon the bridge. The west track is used exclusively for cars going south, and the east track for those going north. At the time of the injury, the plaintiff was a passenger in one of the cars of the defendant going north on the east track on Reed street, which is the street south of the river. A loaded wagon had broken down on the bridge and obstructed that track. The car in which the plaintiff was riding was safely and properly removed to the west track, and just as it was driven upon the bridge the forward wheels left the track. The jolt of the car caused thereby threw the plaintiff from her seat and caused the injury complained of, which was a bruise of one of her limbs below the knee. The ends of the rails of the west track on the south abutment next the bridge were constructed with frogs, which seem to be nothing more than a widening of the rails at the ends. There were also frogs on the ends of the rails on the bridge next the north abutment thereof. The same rail was used on the east track, the frogs being upon the ends of the rails on the north abutment, and on the bridge next the south abutment. Thus it will be seen that whichever way the bridge was turned the location of the frogs was the same. The purpose of these frogs was to overcome the disturbance of the rail by the swaying of the bridge, and to keep the car-wheels on the track when they should strike the bridge or the abutment, although the track might be out of line. It will thus be seen that no precautions were employed in the construction of the tracks with reference to a car running, as did this car, north on the west track.

The testimony given on the trial tends to show that the car was being driven rapidly when it jumped the track. In answer to the question, “What caused said car to leave the track and strike the arch of the bridge?” the jury answered, “Fast driving, and the absence of a frog on the west track of the bridge.” The jury also found the defendant was negligent and the plaintiff was not; that the plaintiff sustained temporary injury to the right leg, which may prove permanent, and assessed her damages at $650. A motion for a new trial was denied, and judgment entered for the plaintiff pursuant to the verdict. The defendant appeals from the judgment.R. K. Adams, for respondent.

Rogers & Mann and E. P. Smith, for appellant.

LYON, J.

1. It is claimed on behalf of the defendant that no sufficient evidence was given upon the trial to support the finding that the defendant was guilty of negligence which caused the injuries complained of. We do not think that negligence can be imputed to the defendant by reason of the manner in which it constructed its railway. The track seems to have been laid in the usual and proper manner, and the frogs placed in the proper positions to keep the cars upon the track when they passed the bridge. In view of the direction in which the cars were moved on the respective tracks, it would be unreasonable to require the defendant to construct its tracks to guard against a contingency such as occurred in the present case. Moreover, it does not appear that the company, in this respect, has violated any of the requirements of its charter, or any order or direction of the authorities of the city of Milwaukee. It is obvious, however, that a car passing north on the west track from the south abutment to the bridge (as was the car in question) would be much more liable to leave the track than one going in the opposite direction on the same track. This fact would render it the duty of the servants of the defendant in charge of the car to exercise more caution to keep the car on the...