Flaherty v. Harrison

• Decision Date: 01 March 1898
• Citation: 98 Wis. 559,74 N.W. 360
• Parties: FLAHERTY v. HARRISON.
• Court: Wisconsin Supreme Court

98 Wis. 559

74 N.W. 360

FLAHERTY

v.HARRISON.

Supreme Court of Wisconsin.

March 1, 1898.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Action by John Flaherty against G. W. Harrison, as receiver of the Ashland Lighting & Street-Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Action to recover damages for personal injuries. The complaint is to the effect that plaintiff approached defendant's street-car track, located on Second street, in the city of Ashland, Wis., from the south, traveling on a cross street known as “Ninth Avenue West”; that he was riding in a wagon, driving a team hitched thereto; that at the intersection of the streets there was a building on one side and a high bill board on the other, which so obstructed his view that he could not see an approaching car till he was near the track; that the track was about 26 feet from the street line; that as he was passing over the track, his horses walking at a rapid rate of speed, a car coming from the west at a great rate of speed, without the motorman giving any signal of its approach by sounding the car bell, struck the wagon, and turned it over, throwing the plaintiff out against a curbstone and telephone pole, causing the injuries for which the damages are claimed.

Looking at the evidence in the most favorable light for plaintiff, it is to the following effect: Plaintiff approached the track as alleged. The obstructions to his view existed as claimed. Plaintiff was standing up in his wagon. When the horses' heads were just over the track, plaintiff saw a car approaching from the west. The motorman, at that instant, immediately signaled for a clear track by vigorously sounding his bell. Plaintiff immediately backed his team clear of the track, and then stopped with the horses under complete control. In backing, the team swung a little to the right so as to stand somewhat diagonally to the track. As the car reached a point nearly opposite where the horses stood, they became frightened by the sound of the bell and the noise and appearance of the car, causing plaintiff to lose control of them, whereupon they jumped forward, onto and partially across the track so as to place the wagon in the pathway of the car. The car instantly struck the wagon near the front end, at which instant plaintiff fell over the side of the wagon box towards the car and let go the lines. Instead of falling to the ground, he caught hold of the wagon box and hung onto it, with his body outside. The horses ran away diagonally across the track and down the street, with plaintiff hanging to the box, and as the hind part of the wagon crossed the track the car collided with it at a point about 30 or 40 feet from the first collision. After the horses ran about 100 feet they passed near a telephone pole on the left-hand side of the street so that plaintiff's body collided with the pole, forcing him to lose his hold on the box and fall to the ground. The evidence is undisputed that plaintiff sustained some injuries, and that neither the wagon nor the car was injured, or showed any evidence of the collision. There is some conflict in the evidence as to the speed of the car, but looking at that in the most favorable light for plaintiff, it is to the effect that if the car was going at the rate of about 8 miles an hour, it would not have been practicable to have stopped it inside of about 50 feet, and that it actually did stop in going from 30 to 40 feet after the car first struck the wagon.

At the close of the evidence there was a motion on the part of the defendant for the direction of a verdict, which was denied, and the ruling duly excepted to. A verdict on the evidence was rendered in plaintiff's favor. There was a motion to set the verdict aside as contrary to the evidence, and for a new trial, which was denied. Judgment was rendered in plaintiff's favor on the verdict, from which this appeal was taken.Tompkins & Merrill, for appellant.

Cate, Sanborn, Lamoreux & Park, for respondent.

MARSHALL, J. (after stating the facts).

The question for decision on this appeal is: Does the evidence warrant the...