61 N.W. 1101 (Wis. 1895), Block v. Milwaukee Street R. Co.

Citation:61 N.W. 1101, 89 Wis. 371
Opinion Judge:ALFRED W. NEWMAN, J.
Party Name:BLOCK, Respondent, v. MILWAUKEE STREET RAILWAY COMPANY, Appellant
Attorney:For the appellant there was a brief by Miller, Noyes & Miller, and oral argument by Geo. H. Noyes. Moritz Wittig, attorney, and W. J. Turner, of counsel, for the respondent,
Case Date:February 05, 1895
Court:Supreme Court of Wisconsin
 
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Page 1101

61 N.W. 1101 (Wis. 1895)

89 Wis. 371

BLOCK, Respondent,

v.

MILWAUKEE STREET RAILWAY COMPANY, Appellant

Supreme Court of Wisconsin

February 5, 1895

Argued January 9, 1895.

APPEAL from a judgment of the superior court of Milwaukee county: R. N. AUSTIN, Judge. Reversed.

This is an action to recover for personal injuries which the plaintiff claims that he received by accidental contact with a telephone wire which had fallen upon the defendant's trolley wire and so become heavily charged with electricity. The negligence imputed to the defendant is its omission to place guard wires over its trolley wires, so as to prevent the telephone wire from coming in contact with them.

The defendant owns and operates an electric railway along Third street in the city of Milwaukee. Third street runs north and south. Green Bay avenue crosses Third street at an acute angle, running northwest and southeast. The tracks of the defendant's road extend northerly on Third street to a point north of its intersection with Green Bay avenue. On the east side of Third street, opposite to the opening of Green Bay avenue, are the defendant's car barns. At this point the overhead trolley wires are supported by cross wires attached to posts on either side of Third street. Near the southwest corner of the car barn, on the east side of Third street, is a telephone pole. From this pole the telephone wire runs diagonally across Third street to a pole standing in the sharp angle between Third street and Green Bay avenue. Thence it runs diagonally across Green Bay avenue to a pole on the west side of the avenue, about 100 yards north of the pole on the sharp angle. These poles carried the wire about thirty feet above the ground and about ten feet above the trolley wires. The telephone wire crosses the trolley wires diagonally. There were no guard wires over the trolley wires.

At the time of plaintiff's accident the telephone wire was broken, and had fallen upon and lay in contact with the trolley wire, and had become and was charged with electricity by such contact. It does not appear that the fact that the telephone wire was broken was known to any of the defendant's employees, nor that any negligence on their part had caused the breakage. The end of the telephone wire so charged with electricity passed along Green Bay avenue, in some places lying upon and in the street. It was in the evening, and after dark. The plaintiff was driving along the avenue with his horse and vehicle. His horse came in contact with the wire, received a shock, and fell. The plaintiff was thrown from his vehicle. He is supposed to have received an electric shock both before and after he left the vehicle. He appears to have received considerable injury.

The telephone wire carries so small a current of electricity as not to be, of itself, dangerous. The trolley wires carry a much larger current of electricity. By contact with the trolley wire the telephone wire may become so highly charged as to become dangerous. The telephone wire was not owned by, nor in any manner under the control of, the defendant. It is unexplained what occasioned the breaking of the telephone wire. It did not break in the span which carried it over and across the trolley wires, but in the next span beyond. It could not have come in contact with the trolley wires had not the fastening of the telephone wire to its pole become so loosened that the wire slipped and the portion over the trolley wires sagged so as to bring it in contact with the trolley wires.

There was a special verdict and judgment for the plaintiff. The defendant appeals.

Judgment reversed and cause remanded for new trial.

For the appellant there was a brief by Miller, Noyes & Miller, and oral argument by Geo. H. Noyes.

Moritz Wittig, attorney, and W. J. Turner, of counsel, for the respondent, contended, inter alia, that it was not error to permit Dr. Becker to testify that "it is reasonably probable that there will be no complete recovery." Griswold v. N. Y. C. & H. R. R. Co. 115 N.Y. 61; McLain v. Brooklyn...

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