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

• Decision Date: 09 December 1924
• Citation: 185 Wis. 210,201 N.W. 257
• Court: Wisconsin Supreme Court
• Parties: HASELMAIER v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

185 Wis. 210

201 N.W. 257

HASELMAIER

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

Dec. 9, 1924.

Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.

Action by Mathias Haselmaier by guardian ad litem against the Milwaukee Electric Railway & Light Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action brought to recover damages sustained by a boy 9 years and 2 months old as a result of his right hand coming in contact with a live power wire which had been cut off and left hanging down in the street near the ground. The jury by a special verdict found: (1) That plaintiff did not intentionally take hold of the wire; (2) that the defendant company failed to exercise ordinary care in the method of cutting the wire and securing it to the wooden poles above the tops of the riser pipes; (3) that such failure was the proximate cause of the injury to plaintiff; (4) that defendant failed to exercise ordinary care in not discovering and remedying the condition of said wire before plaintiff was injured; (5) that such failure to exercise ordinary care was the proximate cause of the injury to plaintiff; (6) that the wire as it hung down from the riser pipes at the time of the injury to plaintiff obstructed or incommoded the public use of the street; (7) that such situation or condition of the wire was a proximate cause of plaintiff's injury; (8) that there was no want of care on the part of plaintiff that proximately contributed to produce his injury; and (9) damages in the sum of $5,000. Plaintiff moved that the damages assessed by the jury be trebled in accordance with the provisions of subsection 6 of section 180.22 of the statutes of 1923. Defendant moved the court to change the answer to question one of the special verdict from “no” to “yes,” and to order judgment for defendant, and in the alternative to change the answer to question 8 from “no” to “yes,” and order judgment for the defendant. The trial court denied plaintiff's motion to treble the damages, and denied both of defendant's motions. It then entered judgment for plaintiff in the amount assessed by the jury. The defendant appealed from the judgment, and the plaintiff asks for a review of that part of the judgment refusing to treble the damages under the statute quoted.Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for appellant.

Olwell & Brady and George A. Gessner, all of Milwaukee, for respondent.

VINJE, C. J. (after stating the facts as above).

On the evening of September 9, 1921, plaintiff's right hand was severely injured by coming in contact with a live electric wire hanging down from an electric pole that was located close to the curb and sidewalk of one of the public streets of Milwaukee. Extending from the ground adjacent to the pole was an iron riser pipe about eight feet high, which contained live electric wires running from an underground conduit to wires on the pole. It seems that a considerable time before the boy was injured the wire had been cut and left hanging in such a manner that it extended almost to the sidewalk. Plaintiff's version of the accident is substantially this: That on that evening he, with other children, numbering five or six, were playing pull-away; that the curb was one of the goals; that in running across the street he ran fast, jumped up on the curb, tried to stop himself, threw out his hands, one of which came in contact with the wire and the other with the iron riser pipe, and that in so doing his right hand was severely injured.

The testimony of his playmates, numbering five, and ranging in ages from 13 to 17, at the time of the injury, was substantially to this effect; that one of the girls in running along came in contact with the wire by her arm brushing against it, and she received a shock, whereupon one of the larger boys, of the age of 17, began to experiment with the wire to see if it was really alive. He took his cap, wrapped it around his hand, touched it lightly, and received a shock. Another boy also made a slight contactwith the wire and received a shock. The larger boys went to a back yard to secure a clothes pole for the purpose of removing the wire so that it would not come in contact with any one passing along the sidewalk. It was testified to that this larger boy before he left cautioned those standing around, including the plaintiff, not to touch the wire. He went and removed the wire from the sidewalk with the use of the pole, and then he and another boy returned to the back yard for the purpose of replacing the clothes pole where they found it; that while they were so doing the plaintiff voluntarily touched the wire with his hand, holding the other hand against or around the electric pole and riser pipe, thus making a perfect circuit for the passage of an electric current, and that as he did this his right hand was severely injured. The jury found that plaintiff did not intentionally touch the wire, and it is claimed that this finding is against the clear weight of the testimony and against all probability. We shall not discuss this phase of the case, and shall assume for the purpose of disposing of the issues that the boy voluntarily touched the wire when he received his injury. The evidence shows that he was 9 years and 2 months of age at the time he was injured. It is true that he testified that he knew that if there was electricity in the wire and he touched it he would be hurt. He testified that he knew what electricity was, and if there was electricity in the wire and he touched it he would get a shock--that he would be hurt.

[1][2] It is elementary that one who voluntarily subjects himself to a danger or hazard appreciating the consequences thereof is held either to have assumed the risk or to be guilty of contributory negligence, as the case may be. And it is not necessary in order to assume the risk or...