McCoy v. Milwaukee St. Ry. Co.
| Decision Date | 03 May 1892 |
| Citation | 52 N.W. 93,82 Wis. 215 |
| Parties | MCCOY v. MILWAUKEE ST. RY. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Milwaukee county; F. L. GILSON, Judge.
Action for personal injury by John McCoy, by his guardian ad litem, against the Milwaukee Street Railway Company. Plaintiff had judgment, and defendant appeals. Reversed.
The other facts fully appear in the following statement by CASSODAY, J.:
This is an action for personal injury sustained by the plaintiff while engaged in traveling on West Water street, in Milwaukee, at a point between Clybourn and Sycamore streets, upon horseback, as a messenger boy, by reason of the horse stumbling and falling upon the plaintiff, and the car running into and injuring him. The complaint is in the usual form in such cases. The answer consists of admissions of incorporation, etc., denials, and alleges as a separate and second defense to the complaint that any injury sustained by the plaintiff was caused by his own negligence, directly contributing thereto. The trial judge, in his charge to the jury, stated, in effect, that there are two different accounts that are given by the witnesses of this transaction, and of the manner in which it occurred. One is an account given by the plaintiff himself, of the fact that he was riding along the street on a horse, and that the horse accidentally stumbled or slipped and fell, and that he fell under the horse, some 150 feet ahead of the street car, and that while lying there the wheel of the car ran over his arm, and crushed it in the manner described. The other account is on the part of the defendant, and is, in substance, that he fell from his horse, or the horse fell down by the side of the street car, after the car had passed by him, and the horse fell, and the boy fell down under him, if he fell at all, by the side of the car, or near the rear end of the car. At the close of the trial the jury returned a verdict in favor of the plaintiff for $2,500. From the judgment entered thereon the defendant brings this appeal.Miller, Noyes & Miller, for appellant.
Turner & Timlin, for respondent.
CASSODAY, J., ( after stating the facts).
The car of the defendant, which it is claimed ran upon the plaintiff, was at the time of the accident going north, on West Water street, towards Grand avenue. According to the plaintiff's testimony the accident occurred somewhere between Clybourn and Sycamore streets. According to the defendant's witnesses, it occurred between Fowler and Clybourn streets. It is undisputed that the accident occurred about half past 6 o'clock on the evening of April 27, 1891, in broad daylight; that the plaintiff was at the time about 18 years of age, riding a large bay horse, blind in one eye, called “Highflyer,” because he was “long legged and skinny;” that said horse had been used as a wagon horse, and that the plaintiff had never ridden him before, and did not know as others had; that the boy had been riding the horse in the vicinity of the car from as far south as Reed street; that after crossing the bridge the car got ahead of the boy on the horse; and that the car was full, or nearly full, of passengers. The theory that the horse fell at or near the track...
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