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

• Decision Date: 09 March 1909
• Citation: 120 N.W. 283,138 Wis. 348
• Court: Wisconsin Supreme Court
• Parties: GAY v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

138 Wis. 348

120 N.W. 283

GAY

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

March 9, 1909.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by Lillian M. Gay, by guardian ad litem, against the Milwaukee Electric Railway & Light Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff on account of the negligence of the defendant. The jury returned the following verdict:

“(1) Was the plaintiff, while a passenger on defendant's car, on the 20th day of June, 1903, injured? Answer (by consent of counsel and direction of the court): Yes.

(2) Was the apparatus, known as the ‘controller,’ on the car in question, at the time of the accident defective and out of repair? Answer: Yes.

(3) If you answer the foregoing question in the affirmative, then answer this question, otherwise not: Did the defendant company have knowledge of the defective condition of the controller, or ought it to have known of such defective condition? Answer: Yes.

(4) Was the motorman operating said car negligent in the performance of his duties as motorman? Answer: No.

(5) If you answer the second, third, and fourth questions or either of them ‘Yes,’ then answer this question: Was such negligence the proximate cause of plaintiff's injury? Answer: Yes.

(6) Was the plaintiff guilty of any want of ordinary care which proximately contributed to her injury? Answer: No.

(7) Is plaintiff now suffering from a diseased heart? Answer: Yes.

(8) If you answer the foregoing question in the affirmative, then answer this question, otherwise not: Was such diseased condition of the heart caused by the injury sustained by the plaintiff at the time and place in question? Answer: No.

(9) Is the plaintiff suffering from traumatic neurosis? Answer: Yes.

(10) If you answer the foregoing question in the affirmative, then answer this one, otherwise not: Was such traumatic neurosis caused by the injury sustained by the plaintiff at the time and place in question? Answer: No.

(11) Was the injury sustained by the plaintiff at the time and place in question the inciting cause of the disease or the inability of which she now complains? Answer: No.

(12) If the court should be of the opinion that the plaintiff is entitled to recover, in what sum do you assess her damages? Answer: $3,000.”

The defendant made several motions upon the verdict, all of which were denied, and judgment was ordered for plaintiff upon the verdict. Judgment was entered accordingly, from which this appeal was taken.Clarke M. Rosecrantz, for appellant.

O'Connor, Schmitz & Wild, for respondent.

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

The defendant is a corporation engaged in operating an electric street railway line in the city of Milwaukee for the carrying of passengers. On the 20th day of June, 1903, the time of the accident, the plaintiff was a passenger on the defendant's car, when the controller at the front end of the car operated by the motorman exploded or short-circuited, and caused fire in the car. The passengers became excited, and in the rush and excitement the plaintiff was injured, which injury it is alleged was caused by the negligence of the defendant. Several grounds of negligence are alleged in the complaint, mainly in failure to provide proper appliances, failure to provide a proper motor, controller, circuit breaker, and fuse, and failure to inspect and properly operate the car. It is insisted by appellant (1) that there is no evidence to support the verdict on the question of defendant's negligence; (2) that the damages are excessive; and (3) that the verdict is insufficient to support a judgment in favor of the plaintiff. We think it clear that the last objection is fatal to the judgment for two reasons: First, because there is no finding of negligence; and, second, because of the form of the third question. On the point that there is no finding of negligence in the verdict the jury found:

“(2) Was the apparatus known as the ‘controller’ on the car in question at the time of the accident defective and out of repair? Answer: Yes.

(3) If you answer the foregoing question in the affirmative then answer this question, otherwise not: Did the defendant company have knowledge of the defective condition of the controller, or ought it to have known of such defective condition? Answer: Yes.”

“(5) If you answer the second, third, and fourth questions, or either of them ‘Yes,’ then answer this question: Was such negligence the proximate cause of plaintiff's injury? Answer: Yes.”

It will be seen that by the second question the jury found merely that a defect existed, and by the third that the defendant knew or ought to have known of the defective condition. There is no finding as to how long the defect existed before the...