Luebben v. Wis. Traction, Light, Heat & Power Co.

• Decision Date: 01 May 1913
• Citation: 154 Wis. 378,141 N.W. 214
• Court: Wisconsin Supreme Court
• Parties: LUEBBEN v. WISCONSIN TRACTION, LIGHT, HEAT & POWER CO.

154 Wis. 378

141 N.W. 214

LUEBBEN

v.WISCONSIN TRACTION, LIGHT, HEAT & POWER CO.

Supreme Court of Wisconsin.

April 29, 1913.

Dissenting Opinion May 1, 1913.

Appeal from Municipal Court of Outagamie County; Thomas H. Ryan, Judge.

Action by William J. Luebben, administrator, against the Wisconsin Traction, Light, Heat & Power Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Timlin, Kerwin, and Siebecker, JJ., dissenting.

Action to recover damages for the death of B. F. Luebben, alleged to have been caused by the negligence of the defendant in failing to keep in repair its street car track in the city of Appleton. The deceased was a conductor in the employ of the defendant on what is called an open car, having no aisles in the center. The conductor collected the fares standing on a running board about nine inches wide, sloping slightly outwards and extending from one end of the car to the other about half way between the ground and the floor of the car. If need be, he supported himself by taking hold of the handles of the seats. At two points on the running board the axles projected into it about half way, and for a distance of about 15 inches in width it was higher over the axles. On August 17, 1910, at about 5:45 p. m., the deceased was standing on the running board when the car went over a rough portion of the track on State street, and was thrown to the ground, and received injuries from which he afterwards died. In the summer of 1909 he had been employed in the afternoons as a conductor for the defendant. He resumed such duties again in the fore part of July, 1910, running from 3 o'clock in the afternoon to 11:45 o'clock in the evening. It took about an hour to make a round trip on the route the deceased ran, and the rough condition of the track had remained about the same for several months prior to the day he was injured. The following special verdict was returned:

“(1) Was the decedent, Bernard F. Luebben, on the 16th day of August, 1910, while at work for the defendant as street car conductor on its car No. 32, injured by falling therefrom? (By the Court): Yes.

(2) Did Bernard F. Luebben die as the result of such injuries? Yes.

(3) Was the deceased caused to fall from the car by reason of a defect in the track, as shown by the evidence, over which said car was being operated? Yes.

(4) If you answer the foregoing question ‘Yes,’ was such defective condition of the track the proximate cause of the deceased falling from said car? Yes.

(5) If you answer question numbered 3 ‘Yes,’ then answer this question: Did such defect exist for a sufficient length of time to have enabled the defendant in the exercise of ordinary care to have repaired the same? Yes.

(6) If you answer the foregoing question ‘Yes,’ was the defendant guilty of want of ordinary care in failing to repair the same? Yes.

(7) If you answer the third question ‘Yes,’ would a person of ordinary care, who had passed over said track with the frequency with which the deceased had ridden over the same, have known of the existence of such defect? Yes.

(8) Was the deceased guilty of any want of ordinary care which contributed to his injury? No.

(9) If you answer question numbered 3 ‘Yes,’ would a person of ordinary care, possessing the knowledge and the opportunity for knowledge of such defect which the deceased possessed, have known and appreciated the danger of operating the car over the track in question at the speed at which the car was being operated at the time of the accident? No.

(10) If the court should be of the opinion that the plaintiff should recover, at what sum do you assess the plaintiff's damages? $4,630.41.”

The trial court, upon motion of the defendant, changed the answers to questions 8 and 9 from “No” to “Yes,” and upon the verdict as thus modified rendered judgment for the defendant. The plaintiff appealed.Francis S. Bradford, of Appleton (J. Elmer Lehr, of Milwaukee, of counsel), for appellant.

Van Dyke, Rosecrantz, Shaw & Van Dyke, of Milwaukee, for respondent.

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

Defendant argues that the answers returned by the jury to questions 8 and 9 are not inconsistent with the answer to the seventh question, and that hence it was entitled to judgment upon the verdict as returned. We are satisfied that the trial court properly changed the answer to question 9 from “No” to “Yes,” and that the verdict so changed called for a judgment in favor of the defendant, and shall therefore not consider the alleged inconsistency of the jury's findings. The case seems to be barren of any contributory negligence, strictly so called, on the part of the deceased, and the court's change of answer to question 8 must be construed only as a finding that the deceased assumed the risk. At any rate, if the evidence shows that the risk of the uneven track was assumed by the deceased, recovery cannot be had. A considerable portion of the argument in behalf of the plaintiff is to the effect that defendant failed to furnish the deceased a safe place in which to work, owing to the roughness of the track generally and the special defect at the place of the injury, and that it was negligent in not repairing the track. Defendant's negligence is a verity in the case, and no time need be devoted to a discussion of that question. The plaintiff's witness Turkow, who was the motorman at the time of the injury, after testifying generally to the roughness of the track all along State street, thus described the place where deceased fell from the car: “Right on Seventh street, on the north end on the north crossing of Seventh, there was a kind of a hole there, and the rails didn't come together. About an inch or an inch and a half of the rails were loose. There was a give to the rails; that is, where the rails were fastened there was a give. There was a hole, and every time we went over there, when the trucks struck that, there was a jolt. * * * The condition of the rails at Seventh street caused the car to jolt whenever it would strike that hollow place. Every time you went over that place, it would give the motion of the car, which I described. It threw the car. When the car went down, it seemed as though it struck something right there, and it kind of jerked the car. I felt that. I always felt the jar on the front trucks, but I could not feel the rear. I felt the same motion every time I went south for several months before the accident. The cars would always swing there, but this (referring to the time of the injury) was kind of a sudden jerk. We were running as usual that night. I felt the same motion coming over after the accident.” Plaintiff's witness Wirtz testified to the effect that he saw Luebben on the car the night of the accident as the car was about 10 of 15 feet north of the north crossing at Seventh street. As the car struck that crossing, Luebben's feet went up, and his head and shoulders down. The witness Zuehlke testified: “I saw Ben Luebben collecting fares on State street. I noticed him walking along the running board towards the front end of the car, collecting fares, and on his return he came to the rear end of the car and attempted to reach up to something, and then all of a sudden I noticed he was off the car, and apparently on the ground on his head and shoulder.”

Thus the evidence discloses that the deceased, who was 42 years old, received injuries resulting in death by being thrown from the running board of an open car at a place where the track was defective while the car was operated in the usual manner and at the usual rate of speed, that it was the second summer of his experience as a street car conductor, and that for over a month previous to the injury he had many times daily passed over the same defect in the track when it jolted the car substantially in the same way. It seems to us that the only reasonable inference to be drawn from the undisputed facts in the case is that the deceased knew of the defect and appreciated the risk of injury arising therefrom. Who better than an adult person that has daily traveled back and forth on a running board as the car passed over a rough track can appreciate the danger of being thrown therefrom and sustaining an injury as a result of the fall? It is not necessary that he should be held to have anticipated the precise injury or the particular manner in which it occurred, or the exact extent thereof. It is sufficient if he, as a reasonably prudent man, ought to have anticipated that some injury might probably result from his being thrown from the car on account of the defective track. Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568;Coel v. Green Bay Traction Co., 147 Wis. 229, 133 N. W. 23;Dodge v. Kaufman, 139 N. W. 741. Among cases in our own court that tend to sustain the conclusion reached, though under a different state of facts, may be cited: Laughy v. Bird & Wells Lumber Co., 136 Wis. 301, 117 N. W. 796;Hanson v. Superior Manufacturing Co., 136 Wis. 617, 118 N. W. 180;Mahar v. Montello Granite Co., 146 Wis. 46, 130 N. W. 949;Jones v. Milwaukee E. Ry. & L. Co., 147 Wis. 427, 133 N. W. 636;Dodge v. Kaufman, 139 N. W. 741.

Judgment affirmed.

TIMLIN, J. (dissenting).

I agree that the actionable negligence of the defendant is established by the evidence and by the verdict, that the evidence and the verdict establish that there was no contributory negligence on the part of deceased, and that the defect in the track which caused the death was “kind of hole there, and the rails didn't come together. About an inch or an inch and a half of the rails were loose. There was a give to the rails; that is, where the rails were fastened there was a give. * * * There was a hole there, and every time we went over there when the trucks struck that there was a jolt.” For about a foot and a half on either side of the joint there was no gravel or crushed stone for a space of about three inches wide on the inside and the outside of the rail. That...