Dahl v. Milwaukee City Ry. Co.

• Decision Date: 23 February 1886
• Citation: 65 Wis. 371,27 N.W. 185
• Parties: DAHL, ADM'R, ETC., v. MILWAUKEE CITY RY. CO.
• Court: Wisconsin Supreme Court

65 Wis. 371

27 N.W. 185

DAHL, ADM'R, ETC.,

v.MILWAUKEE CITY RY. CO.

Supreme Court of Wisconsin.

Filed February 23, 1886.

Appeal from county court, Milwaukee county.

This is an action to recover damages for the death of the plaintiff's intestate, (who was his child,) alleged to have been caused by the negligence of the defendant company, (which owns and operates a line of street railway in the city of Milwaukee,) and of the driver of one of its teams and cars. On a former trial the county court ordered a compulsory nonsuit, and the judgment rendered pursuant thereto was reversed by this court on appeal. 62 Wis. 652, and 22 N. W. Rep. 755. The cause has been again tried. The testimony on the two trials is substantially alike. A sufficient statement of it will be found in the report of the former appeal. On the last trial the jury returned a special verdict, in the usual form of answers to interrogatories submitted to them. These are as follows:

“(1) Did the parents of the child exercise ordinary care and prudence in taking care of and preventing the child going onto the street upon which it was killed by the cars? Yes. (2) Was Peter Dahl, in whose care the child was left by its mother on the day of and prior to the accident, guilty of negligence in his care of the child? No. (3) Did Peter Dahl know or observe when the child escaped from his care when sitting upon the steps? No. (4) How long after the child escaped from his care was it before he discovered its absence? About one minute. (5) Was there any fence or barrier between the place where the child sat on the steps with her brother and the street or the railway track? No. (6) Was it a dangerous place for a child of that age to go unattended upon and across the street, with cars passing and repassing? Yes. (7) At what point in the street was the child hit by the car? Near the crossing. (8) Was the child hit while on or near the track on which the car was moving by the whiffletree of the same? Yes. (9) Did the driver prior to the accident see the child running towards or near the track on which the car was running? If so, how long prior to the accident? Yes; and nearly at the same instant. (10) How far did the car run after the child was hit before it was stopped? About twenty feet. (11) Did the child run directly from the north side of the street towards the car on the south track, as it was coming east, and while it was in plain sight, and without stopping? Yes; diagonally. (12) Had the child on that day, unattended and alone, crossed the track prior to this accident? No evidence. (13) Did the child cross the north track, and run against the whiffletree or the horses on the north rail of the south track of the road? Yes. (14) Did the driver see the child until immediately before it was knocked or thrown down, and until after he turned to make the change? No. (15) Was it a part of his duty as driver to give change to passengers in the car, and was he so engaged when the child ran up against the whiffletree, and was thrown down? Yes. (16) How long a time elapsed between the time the child started to run towards the car and the time it was hit and thrown down? About one minute. (17) Did not the driver at once attempt to stop his horses and brake the car by all means in his power, to avoid the injury, as soon as he saw the child? Yes; but from other duty and excitement, not in time. (18) Was the child instantly killed? Almost instantly killed. (19) Was the defendant guilty of negligence, or want of ordinary care, which caused the injury? Yes. (20) Do you find for the plaintiff or defendant? Plaintiff. (21) If you find for the plaintiff, at what sum do you assess the damages? At $700.”

The defendant moved the court to set aside the answers to the second and nineteenth questions on the grounds that they are unsupported by the evidence, and are inconsistent with certain other findings, and for judgment. The court denied the motion, and gave judgment for the plaintiff for the damages assessed by the jury. The defendant appeals from the judgment.Rogers & Mann and E. P. Smith, for appellant.

Austin & Runkel, for respondent.

LYON, J.

The defendant's motion for judgment is founded on the proposition that if the second and nineteenth findings are eliminated from the special verdict the remaining findings establish that the boy, Peter, in whose care the deceased child was left by their mother, was guilty of negligence which contributed directly to the death of the child, and that the defendant is not chargeable with any negligence in that behalf. If this is a correct proposition, and those two findings are rejected, it necessarily follows that the general verdict for the plaintiff will be...