Cawley v. La Crosse City Ry. Co.

• Decision Date: 27 February 1900
• Citation: 106 Wis. 239,82 N.W. 197
• Parties: CAWLEY v. LA CROSSE CITY RY. CO.
• Court: Wisconsin Supreme Court

106 Wis. 239

82 N.W. 197

CAWLEY

v.LA CROSSE CITY RY. CO.

Supreme Court of Wisconsin.

Feb. 27, 1900.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action by Thomas Cawley against the La Crosse City Railway Company to recover for injuries. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Action by plaintiff to recover his damages for the same injury to his wife which was under consideration in Cawley v. Railway Co., 101 Wis. 145, 77 N. W. 179. At the close of the plaintiff's evidence the court directed a verdict for the defendant, from judgment on which plaintiff appeals.Ray S. Reid, for appellant.

Losey & Woodward, for respondent.

DODGE, J.

1. The rules of law set forth in the former consideration of the events on which recovery is predicated, and the conclusion drawn therefrom, must control this case, in so far as there is substantial identity in the material facts. This not upon the ground of res adjudicata (Selleck v. City of Janesville, 80 N. W. 944, 104 Wis. 570), but of stare decisis. The narrative of events on which liability was predicated in the former case need not be repeated here, except so far as may become necessary for comparison. Here, as there, there was not only no direct evidence of any negligence on the part of the defendant, but there was the direct evidence of the motorman of the exercise of all usual diligence to avoid the accident after peril thereof became apparent. As in the former case, also, there was no evidence, even suggested by plaintiff's counsel, from which negligence on the part of the defendant could be inferred, except that it is claimed an omission of efforts by the motorman may be inferred from Mrs. Cawley's testimony tending to show that she traveled the distance requisite to pass two or three teams before she was struck by the car. On the former trial this contention was found to be so wholly overcome by other facts and circumstances that the jury could not legitimately have believed the fact to exist. One of those circumstances was that the man Bixby, whose moving woodrack and team she was attempting to pass, testified that her buggy was thrown behind his wagon. That fact is now absent, Bixby and his woodrack and team of horses have vanished, and instead thereof is a single woodrack and team driven by one John Dee, who, by the way, before the other trial had solemnly declared that he was not in the neighborhood, and had no knowledge of the matter. He does not testify that the buggy fell behind his wagon, but that Mrs. Cawley's horses, at the time she was struck, were substantially even with his, and that the buggy was pushed along by the car so as to fall in front of his wagon. He...