Geitz v. Milwaukee City Ry. Co.

• Decision Date: 09 October 1888
• Citation: 72 Wis. 307,39 N.W. 866
• Parties: GEITZ v. MILWAUKEE CITY RY. CO.
• Court: Wisconsin Supreme Court

72 Wis. 307

39 N.W. 866

GEITZ

v.MILWAUKEE CITY RY. CO.

Supreme Court of Wisconsin.

October 9, 1888.

Appeal from circuit court, Milwaukee county.

This action was brought by Henry Geitz against Milwaukee City Railway Company to recover damages for personal injuries alleged to have been suffered by the plaintiff, by means of the negligence of the defendant company, when a passenger on one of its cars. The defendant owns and operates a street railway in the city of Milwaukee, the cars upon which are drawn by horses. A portion of the railway extends from Fifth street west, along Chestnut street, to Twenty-First street and beyond. It has two tracks, the inside rails of which are three feet three inches apart. The north track is used for cars going west, and the south track for cars going east. The defendant company uses on these tracks closed cars, and open or summer cars; the latter being longer and wider than the former. On September 15, 1887, the plaintiff, who resided a short distance west of Milwaukee, came to the city, and started to go to the state fair, which was then in progress. He took passage at Fifth street, on one of the open cars of the defendant company going west. The seats in the car were all occupied, and several passengers were standing upon the foot-boards running from platform to platform of the car. The plaintiff took a position on the south foot-board, and supported himself by placing an arm around one of the posts which support the roof of the car. All of the cars going west at about that time seemed to have been crowded with passengers, and the foot-boards of the open cars were also occupied. The plaintiff had his right arm around the post, and was facing west, in the direction the car was moving. Before the car reached Twentieth street it had met many other cars, probably 15 or more, going east; but the testimony tends to show that they were all closed cars. A short distance west of Twentieth street the car met another open car, going east. At this point the road descended to the east. The east-bound car was empty, and the horses drawing it passed the other car on a trot. One of the rear posts of the east-bound car struck the plaintiff upon his shoulder and head, throwing him to the ground, and inflicting the injuries complained of. By actual measurement, when two open cars were standing on the tracks side by side, the inner foot-boards were only five and a half inches apart. These foot-boards were each seven inches wide, and the inside posts of the cars were 25 inches apart. The testimony on the trial tends strongly to show that the officers and employes of the defendant company made great exertions during that day to warn passengers of the danger in meeting cars on the track and to avoid casualties. Tho conductor collected fare of the plaintiff when he was so riding upon the foot-board of the car, and made no effort to prevent him or any other passengers from so riding there. On the trial of the cause the jury found a special verdict, to the effect that the foot-board of the car where the plaintiff was riding, when meeting another open car, was a place of danger; that the plaintiff did not know that it was dangerous, but the defendant company did; that the plaintiff did not lean towards the approaching car voluntarily; that there was no room for him to stand in the aisles of the car, between the seats, with reasonable comfort; that he was not warned of the approaching car, and to take care, in time to have avoided the injury; that, under the circumstances, it was an act of ordinary care and prudence on his part to ride at the place and in the manner he did; that he was not guilty of any want of ordinary care which contributed to the injury; that the open cars of the company were built too wide to carry passengers on the inside foot-board with safety; that the car which injured the plaintiff was being driven dangerously fast when he was so injured; that the negligence of the company in the management of its cars caused or contributed to the injury complained of; and that the plaintiff was injured to the amount of $300. A motion for a new trial was denied, and judgment for the plaintiff rendered for the damages assessed by the jury, and costs. The defendant appeals from the judgment.Finches, Lynde & Miller and E. P. Smith, for appellant.

Clarke & McAuliffe, for respondent.

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

We doubt whether the jury should have found that the plaintiff was not warned by the employes of the company of the danger of riding upon the inside foot-board of the car. The testimony is quite strong that special care was taken by the company to cause full warning of such danger to be given to all passengers upon its cars; yet, in the view we have taken of this case, we do not think the judgment would necessarily be different had the jury found differently on this question. It is quite certain that there was some peril attendant upon riding in that place to which passengers seated in the car were not subjected; yet, in view of the fact that the car was propelled by horses instead of steam-power, and hence moved less rapidly, and was more easily managed, we cannot say it was negligence per se for the plaintiff to ride on the foot-board. Whether his riding there was a negligent act was a proper question for the jury to determine, in the light of all the facts in the case. The jury have determined that it was not negligence on the part of the plaintiff to ride there, and the finding cannot...