Cook v. Rice Lake Milling & Power Co.

• Decision Date: 05 April 1911
• Citation: 146 Wis. 535,130 N.W. 953
• Court: Wisconsin Supreme Court
• Parties: COOK v. RICE LAKE MILLING & POWER CO.

146 Wis. 535

130 N.W. 953

COOK

v.RICE LAKE MILLING & POWER CO.

Supreme Court of Wisconsin.

April 5, 1911.

Appeal from Circuit Court, Sawyer County; James Wickham, Judge.

Action by Julia F. Cook against the Rice Lake Milling & Power Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Siebecker and Kirwin, JJ., dissenting.

Action to recover for a personal injury. The issues sufficiently appear by the following, established by the evidence:

In the regular course of legitimately erecting a power plant, adjacent to a public highway where it crossed the Red Cedar river at Rice Lake, Wis., plaintiff placed and operated on its own land a small portable engine. The fire box was 5 to 15 feet from the side of the bridge and the smokestack further away. The machine sat on a lower level than the top of the bridge. The smokestack was 10 to 18 feet from the side of and reached 5 to 10 feet above the roadway. Smoke from the stack was liable to be carried toward the bridge and, as proved to be the case, frighten horses of ordinary gentleness. The engine was a necessary appliance in constructing the power plant. It might have been located a little further from the bridge and the smokestack carried somewhat higher so as to have lessened, perhaps, danger of frightening horses. It was operated with due care. No unusual or unnecessary noise or emission of smoke from the smokestack, occurred. The smokestack was readily observable by a person approaching the vicinity of the engine on the roadway. For some time before the occasion in question the engine had been used during working hours and without interfering with convenient, safe use of the bridge. No arrangement was made to warn travelers of the presence of the engine or to avoid frightening horses. The engine was operated in the ordinary way, leaving users of the highway to look wholly after their own safety. As plaintiff, in the daytime, with others, one of whom was the driver, was riding in a one horse drawn vehicle across the bridge, unconscious of the location of the engine, the horse became frightened from smoke suddenly escaping from the smokestack and blowing toward the roadway, ran away, threw her out of the conveyance and seriously injured her. The particulars of the injury were sufficiently established to enable a jury to assess damages.

There was a motion for a directed verdict in defendant's favor, which was denied. There was a special verdict as follows: The engine was negligently placed and operated with reference to use of the highway for driving thereon with horses of ordinary gentleness. Defendant failed to exercise ordinary care in locating and operating the engine. Such failure was the proximate cause of the injury, without any want of ordinary care on her part or of the driver contributing thereto. She was damaged in the sum of $4,950.

The court refused judgment on the verdict and on motion reversed the three first findings and rendered judgment in defendant's favor.W. H. Frawley and T. F. Frawley, for appellant.

Clarence C. Coe, Arthur E. Coe, and James Robbins, for appellee.

MARSHALL, J. (after stating the facts as above).

The judgment must be affirmed. The case seems to have been prosecuted upon the theory that if a person use his premises in the prosecution of legitimate business without anything unusual about it, or notice by any previous occurrence that the kind and manner of use may frighten horses rightfully in the vicinity,--though the use has been enjoyed for a considerable length of time without any such difficulty--he is nevertheless liable to one who may be injured by such use, if the occurrence be one liable to take place under the circumstances. Neither precedent nor principle supports that.

All

[1] actions for damages on the ground of negligence depend on failure of duty of the defendant--failure to exercise ordinary care--a legal wrong to the demandant.

[2] There is no evidence to establish any such fault in this case--any evidence to warrant the thought that a person of ordinary care would hesitate to locate a...