Dahl v. Milwaukee City Ry. Co.

• Decision Date: 31 March 1885
• Citation: 22 N.W. 755,62 Wis. 652
• Parties: DAHL, ADM'R, ETC., v. MILWAUKEE CITY RY. CO.
• Court: Wisconsin Supreme Court

62 Wis. 652

22 N.W. 755

DAHL, ADM'R, ETC.,

v.MILWAUKEE CITY RY. CO.

Supreme Court of Wisconsin.

Filed March 31, 1885.

Appeal from county court, Milwaukee county.

May 26, 1883, a daughter of the plaintiff, aged four years and four months, was run over by one of the cars of the defendant company at or near the intersection of Walnut and Tenth streets, in the city of Milwaukee, causing her death. The plaintiff has been duly appointed administrator of the estate of his deceased daughter, and brings this action to recover damages for such killing, alleging that the death of his intestate was caused by the negligence of the defendant, and of the driver of the team which drew such car. The cause was tried before the court and a jury, and at the close of plaintiff's testimony the court granted a compulsory nonsuit. A motion for a new trial was denied, and judgment against the plaintiff for costs was entered, pursuant to the nonsuit. Plaintiff appeals from such judgment. The testimony introduced on the trial tended to show the following facts: The plaintiff, with his family, consisting of his wife and six children, lived on the south side of Walnut street, near its intersection with Tenth street, and had resided there for several years. The plaintiff is a laboring man, and on the afternoon of the death of his child was at work away from home. His oldest son, aged 17, was at work in his house, up stairs, making cigars. The next, aged 15, was at work in another portion of the city. Another son, Peter, aged 13, was at home. The mother, desiring to leave the house for the purpose of obtaining supplies for the family, took the deceased from the house and put her in the charge of Peter, who was sitting on the steps in front of the house, contiguous to the sidewalk on the south side of Walnut street. The mother then went upon her errand. The little girl sat by the side of Peter on the steps, and he talked and played with her for a time. In a short time thereafter she was missing. Peter made immediate search for her in the house and upon the premises, and just as he returned to the front of the house and called her, the accident happened. The car which ran over her was moving from the west on Walnut street towards Tenth, on a descending grade, the team going at a brisk trot. The child was run over near the usual crossing of Tenth street, on the south side of Walnut. There are double tracks of railway along Walnut street. The child was going north, and was run over on the south track. The attention of the driver was partly diverted at the time in making change for a lady passenger, but he saw the child on the track a short distance ahead of his team and used efforts to stop the team, but did not succeed in doing so in time to save her.

The foregoing are the main facts which the testimony tended to prove. There was testimony of many other facts and circumstances having some bearing upon the questions of negligence involved in the case, but it is deemed unnecessary to...