Kelly v. S. Wis. Ry. Co.

• Decision Date: 18 February 1913
• Citation: 152 Wis. 328,140 N.W. 60
• Parties: KELLY v. SOUTHERN WISCONSIN RY. CO.
• Court: Wisconsin Supreme Court

152 Wis. 328

140 N.W. 60

KELLY

v.SOUTHERN WISCONSIN RY. CO.

Supreme Court of Wisconsin.

Feb. 18, 1913.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by William M. Kelly, by Mathew P. Kelly, his guardian ad litem, against the Southern Wisconsin Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action to recover for a personal injury. All conditions precedent to the right to maintain the action and to legal capacity to sue were pleaded and established by proof.

Plaintiff was an infant of the age of six years. July 27, 1911, defendant, a street railway corporation, was lawfully engaged in stringing an electric feed wire on a city street where children, to its knowledge, were liable to be. A snatch block and rope were used with a team of horses to furnish power. The snatch block pulley was enclosed so far as practicable. It was attached to a pole in the line the wire was to be stretched, some eighteen inches from the ground. The mode of operation was to attach one end of a long rope to the wire to be placed in position, the other end of the rope being attached to the draft bar to which the team was hitched after such rope had been properly threaded through the snatch block. The feed wire was wound on a spool, the loose end being the one attached to the rope which extended over cross arms on poles some distance to the snatch block then in due course to the draft bar. The spool was located some seven hundred feet from the pulley. Two men were stationed at the spool, another drove the team and one man was stationed at the street crossing. The team, at the start, was near the pulley and as operations progressed, approached the spool. There was no guard stationed at the pulley or to watch out for children who might interfere with the rope during the progress of the work. The accident happened some 300 feet from plaintiff's home. The plaintiff was not familiar with the appliance. The particular day was the first of the operations. Large numbers of children were accustomed to congregate in the street to play. While the boy was amusing himself with the rope near the snatch block, the team was started whereby his hand was drawn into the pulley and severely injured. The contrivance was liable to attract young children who might be playing in the street and cause them to take hold of the rope and defendant knew, or ought to have known, children were liable to be in the vicinity of the pulley while the work was in progress.

The pleadings formed issues rendering admissible evidence as to all the matters suggested, and there was evidence as to each such matter, either direct or indirect. At the close thereof there was a motion for a directed verdict which was denied. The jury found, specially: (1st) Defendant ought, in the exercise of ordinary care, to have known that the rope was calculated to attract children to play therewith; (2nd) The pulley was not of the kind customarily used by ordinary careful persons; (3rd) Defendant did not conduct the operations as such work is ordinarily done; (4th) Defendant failed to exercise ordinary care in the manner and place the pulley was attached to the pole, likewise in conducting the operations without any watchman to guard against persons being injured at the pulley; (5th) Defendant's want of ordinary care was the proximate cause of the injury; (6th) Plaintiff was not guilty of any want of ordinary care, neither were his parents so guilty; (7th) It will take $2,000 to compensate plaintiff for his loss.

On such verdict judgment was rendered for plaintiff, numerous exceptions being saved for consideration on appeal.Jones & Schubring, of Madison, for appellant.

Aylward, Davies, Olbrich & Hill, of Madison, for respondent.

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

Did defendant breach a duty to exercise ordinary care for the safety of children who were liable to be in the street in the vicinity of its rope; having regard for danger of their interfering with the appliance?

The trial court, in contemplation of supposed legal principles, decided there was reasonable ground in the evidence to find in respondent's favor, and, so, sent the matter to the jury. Acting under the judicial suggestion, the jury took the subject as involving questions of fact, determinable from controverted reasonable inferences arising from the evidence and resolved the uncertainty in favor of respondent. The result was challenged as contrary to the evidence, on the motion for a new trial, and the decision was against appellant. So the error now assigned, that there is no reasonable support in the evidence for the verdict, is opposed by the judgment of the jury and that of the trial court both before and after verdict. For success thereof a strong case is required,--much stronger than is presented here if the law applicable thereto is as the trial judge supposed. The force of the argument of counsel for appellant is substantially all directed from an angle far different, from a legal standpoint, than the one from which the court below observed the situation. If the latter be right, the judgment must be affirmed. If the former be right, it must be reversed.

Counsel ground their faith, in the main, upon want of duty to respondent,--that appellant followed the custom as to the kind of appliance, and, therefore, as matter of course, there was no failure to exercise ordinary care. Does that satisfy the situation? The difficulty is in the evidence, substantially, stopping with the one circumstance that the appliance was the usual one and that no accident had previously occurred. This, by the foreman, is a fair sample: The method of stringing the wire was the same I have used for years. Other companies string the same way,--the same kind of a pulley with a rope and team being used. The telephone companies use the same kind of a contrivance. We had one man at the street crossing to give signals to men at the spool and one driving the team. The man at the crossing had to watch the snatch block and the feeder as it came along because of teams and people walking back and forth across the street. I have never known of children playing with the rope or of any accident. There was no watching to keep children away from the pulley and rope. The man at the crossing was to see that teams had opportunity to pass and watch everything, and guard to see that everything was all right, and that no one was near the line where it came near the ground. The men did not have any instructions to keep children away from the rope. That may all be. It makes a pretty clear case as regards danger to persons using the appliance; but the complaint is not of the character of the appliance or the means or manner of its location, but of no efficient attention being paid to keeping children from interfering with the rope near the pulley, notwithstanding it was dangerous to do so, and the location and circumstances were such that defendant's employees were chargeable with knowledge that children were liable to be lawfully in the street in the zone of danger and be attracted into it. It was one thing to use a proper appliance and to see that it operated right as regards the work being done and to see that, when the rope interfered with travel at the street crossing, teams and pedestrians were permitted to pass. It was quite another thing to exercise efficient care to guard against children being injured by interfering with the rope and pulley at the point of danger, some hundreds of feet from the spool and the man at the street crossing, in view of the fact, if it be a fact, that appellant had reasonable ground to apprehend that such care was necessary. Failure in that field is the real ground of negligence pleaded and to which the evidence on the part of respondent was directed, and which was submitted to the jury. Thus we see the evidence appellant's counsel relies upon does not reach the real situation. The manner employed, from a mechanical standpoint, in doing the work may have been all right, but how about the means employed to guard against children lawfully in the street being injured in the progress of the work? That is the question, if we pass the point in favor of respondent as to whether, in the exercise of ordinary care, such means were required, and on that question the direct evidence on the part of appellant is silent, except in the statement of the foreman that he had never known of an accident happening by reason of children playing with the rope. The defense seems to have been upon the theory that appellant had a right to be in the street with a proper appliance for doing its work, properly operated as regards public travel, and that it had no duty to perform as regards children, who, being lawfully in the street for its ordinary use, might step aside and interfere with the rope, as was done in this case....