Dummer v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 08 January 1901
• Citation: 108 Wis. 589,84 N.W. 853
• Court: Wisconsin Supreme Court
• Parties: DUMMER v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

108 Wis. 589

84 N.W. 853

DUMMER

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

Jan. 8, 1901.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action for injuries by Paul Dummer against the Milwaukee Electric Railway & Light Company. From a judgment in favor of the plaintiff, defendant appeals. Reversed.

This is an action for personal injuries. The facts shown in the evidence were as follows: State street, in the city of Milwaukee, is a public highway running east and west, upon which the defendant company operates double railway tracks; the cars being propelled by electricity. The roadway of the street is about 40 feet wide between the curbstones, the car tracks being in the center of the street, and there being a distance of about 13 feet from the outside track to the curbstone upon each side. Thirteenth and Fourteenth streets are north and south streets, which cross State street at right angles, and one block apart. Between Thirteenth and Fourteenth streets there is also an 18-foot alley running north and south, and crossing State street at right angles. The center of the alley is 166 feet west of Thirteenth street. On the 28th of May, 1898, the plaintiff, a man aged 38 years, was riding on a wagon loaded with two large sticks of timber 40 feet long; the wagon being drawn by one horse, and the front and rear axles thereof being about 26 feet apart. The plaintiff sat on one of the timbers about 2 feet forward from the hind axle; and the driver, one Jacob Freuh, sat upon the front part of the wagon. In this condition the teamster drove south on Thirteenth street to State street, and then turned west on State street, and drove on the south side of the railway track. His purpose was to enter the alley between Thirteenth and Fourteenth streets on the north side of State street. As the teamster approached the alley, they saw a car approaching from the west on the south track of State street, and the teamster stopped, and waited, and let the car pass. Immediately after the passage of the east-bound car, he turned his horse north, making a semicircle, in order to drive into the alley, and the horse proceeded at the usual gait across both lines of railway track, and was about to enter the alley, when one of the defendant's cars coming from the east ran into the wagon about 23 feet from the front end of the timber, turning the wagon over, and shoving it 10 feet or so west, and injuring the plaintiff. The accident happened at noon, and the railway track was dry. The negligence claimed by the plaintiff was the excessive speed of the car, and that no warning was given by the motorman. The jury rendered the following special verdict: “(1) Was plaintiff injured on May 28, 1898, on State street, between Thirteenth and Fourteenth streets, by a collision between the wagon he was riding upon and one of the defendant's cars? By the Court: Yes. (2) Was the motorman of defendant's car guilty of a want of ordinary care which proximately caused plaintiff's injury? Yes. (3) Did the teamster, Jacob Freuh, look to the east, to ascertain whether or not a car was approaching, before driving north upon defendant's tracks? By the Court: No. (4) Did plaintif...