Lightfoot v. Winnebago Traction Co.

• Decision Date: 10 January 1905
• Citation: 123 Wis. 479,102 N.W. 30
• Parties: LIGHTFOOT v. WINNEBAGO TRACTION CO.
• Court: Wisconsin Supreme Court

123 Wis. 479

102 N.W. 30

LIGHTFOOT

v.WINNEBAGO TRACTION CO.

Supreme Court of Wisconsin.

Jan. 10, 1905.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by Elva E. Lightfoot against the Winnebago Traction Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This is an action to recover damages for personal injury sustained by the plaintiff about 3 o'clock in the afternoon of September 23, 1902, while riding in a single carriage, drawn by one horse, driven by her companion, by reason of coming in collision with one of the defendant's street cars. It appears and is undisputed that Main street runs north and south in Oshkosh; that the defendant's track is in that street at the place of collision, and for at least one block north and one block south of the same; that Washington street intersects with, and runs east from, Main street, and at right angles with it; that Algoma street intersects with, and runs northwest from, Main street; that the center of Algoma street is 25 or 30 feet north of the center of Washington street, at their respective intersections; that the particular locality of such intersections was the most traveled of any in the city, and was paved with vitrified brick, which caused much noise as vehicles passed over the same; that Main street north of such intersections was narrower than south of it; that at the time in question the plaintiff, with her companion, was driving north on the east side of Main street, toward such intersections; that, upon reaching a point at or near the northwest corner of Washington street, they started west across the defendant's track toward Algoma street; that while in the act of crossing the defendant's track they were struck by one of the defendant's cars coming from the north, and the plaintiff was badly injured. The answer was a general denial, and allegations of contributory negligence on the part of the plaintiff and the driver. There is evidence on the part of the plaintiff tending to prove that at the time they started to go across the track the streets at such intersections were full of teams, and that there was a wagon loaded with wood ahead of them, so high as to obstruct their view of the coming car. Issue being joined, and trial had, the jury, at the close of the trial, returned a special verdict wherein it was found (1) that the plaintiff was injured at the time and place alleged in the complaint; (2) that the defendant, through its employés, was guilty of a want of ordinary care and prudence in the operation of said car at the time of the accident; (3) that such want of ordinary care and prudence on the part of the defendant was not the proximate cause of the plaintiff's injury; (4) that the gong was sounded on approaching the intersection of Main and Washington streets; (5) that the motorman tried to stop the car as soon as it became apparent to him that there would be a collision; (6) that the car was running, when it struck the buggy, 8 1/2 miles per hour; (7) that the want of ordinary care and prudence on the part of the plaintiff, or the driver of the wagon in which the plaintiff was riding, contributed to produce the injury; (8) that they assessed the plaintiff's damages at $2,000. From the judgment entered upon such verdict for $106.55 costs, and disbursements as taxed, the plaintiff brings this appeal.Eaton & Eaton, for appellant.

Weed & Hollister, for respondent.

CASSODAY, C. J. (after stating the facts).

The verdict seems to be supported by evidence. The question for consideration is whether there was any reversible error upon the trial.

One of the questions in controversy was whether there was contributory negligence on the part of the plaintiff, in failing to see the coming car in time to avoid driving onto the track immediately in front of it. The evidence on the part of the plaintiff tended to prove that as she and her companion moved north on the east side of Main street, toward the place of collision, as stated, they drove immediately behind a large wood wagon loaded with pine wood, from 6 to 8 feet high and from 6 to 7 feet wide; that they did not know whose wagon it was, nor who was driving the team. One of the plaintiff's witnesses testified that he thought the wood wagon “belonged to some manufacturing establishment” in Oshkosh; and another, that he should judge that such wood wagon was at the time loaded with pinewood slabs, such as were got out by the Paine Lumber Company of Oshkosh; that he thought the wagon was 16 feet long; that he “should judge it was the ordinary wood wagon used * * * on the streets by millmen delivering wood” in Oshkosh. In view of such testimony on the part of the plaintiff, we perceive no error in allowing the witness E. C. Owens, on the part of the defendant, to testify that he had lived in Oshkosh 35 years, and had been engaged in the business of manufacturing sash, doors, and blinds for 25 years, and was familiar with the wood wagons used by the millmen in Oshkosh; that he had measured such wagons to find out their height; that such wagons in use by his company (McMillen Co.), and such as were in usual use, were five feet high; that that company “used in their business wood wagons such as are commonly and ordinarily in use among millmen in the city of Oshkosh for delivering wood”; and that the highest of those wagons were 5 feet and 4 inches high, measuring from the ground to the top of the load, and about 5 feet wide; that such wagons were about the same as those used by the different manufacturers; that the loads driven by Paine Lumber Company, he should think, would be 6 or 7 feet high; and that he supposed that the wood wagons of Morgon Company were about the same as those used by the McMillen Company. The owner of the wagon and the driver of the team were both unknown to the plaintiff and her companion. As appears, the plaintiff's witnesses had only given estimates as to the height of the wagon. The defendant had no way of identifying the particular wood wagon in question. The best...