Boerth v. W. Side R. Co.

• Decision Date: 16 March 1894
• Citation: 58 N.W. 376,87 Wis. 288
• Parties: BOERTH v. WEST SIDE R. CO.
• Court: Wisconsin Supreme Court

87 Wis. 288

58 N.W. 376

BOERTH

v.WEST SIDE R. CO.

Supreme Court of Wisconsin.

March 16, 1894.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by H. J. Boerth against the West Side Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

This action is to recover damage to the plaintiff's horses, harnesses, wagon, and load of pies therein, by reason of being struck by an electric car of the defendant at the junction of Grand avenue and Eighth street, in Milwaukee, September 15, 1891. The defense is a general denial and contributory negligence. At the close of the trial, the court directed a verdict in favor of the defendant. From the judgment entered thereon, the plaintiff brings this appeal.Fiebing & Killilea, for appellant.

Danforth Becker, W. J. Turner, C. N. Gregory, and F. B. Myers, for respondent.

CASSODAY, J. (after stating the facts).

The evidence on the part of the plaintiff is to the effect that the wagon in question was covered with wood on the top and on both sides; that the only person on the wagon at the time of the injury was the plaintiff's driver; that in driving he sat about two feet back from the front of such covering, where he could not see out on either side; that about 8 o'clock on the morning in question he drove north on Eighth street until he came to Grand avenue; that while in the act of crossing that avenue, with the horses on a walk, the defendant's electric car came from the west on the avenue, and struck the hind end of the wagon, and caused the damage complained of. The driver frankly admits that he did not see the car until after the collision; and that he could not see it by reason of his being seated so far back behind the side covering; and that he heard no bell, nor alarm of any kind. If such evidence was true, then the defendant was guilty of negligence, and the plaintiff, by his driver, was guilty of contributory negligence which would bar a recovery. The evidence on the part of the defendant is to the effect that the wagon in question was at the time being driven on the southerly side of the avenue, from Ninth street to Eighth street, by the side of the car, or a little ahead of it; that upon reaching Eighth street the plaintiff's team suddenly turned north on Eighth street, immediately in front of the car, and had nearly crossed the railroad track when the wagon was struck, as...