Schoenfeld v. Milwaukee City Ry. Co.
| Decision Date | 24 September 1889 |
| Citation | 43 N.W. 162,74 Wis. 433 |
| Parties | SCHOENFELD v. MILWAUKEE CITY RY. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Milwaukee county; GEORGE H. NOYES, Judge.
Action by Frank Schoenfeld against the Milwaukee City Railway Company. Judgment was rendered for defendant, and plaintiff appeals.M. N. Lando, for appellant.
Finches, Lynde & Miller, ( E. P. Smith, of counsel,) for respondent.
This action is brought by the plaintiff to recover damages of the defendant for personal injury while a passenger on one of the open cars of the defendant, on its street railway in the city of Milwaukee, caused by a collision of cars, through the defendant's negligence. The only facts necessary to be stated to make the decision intelligible are the following: The plaintiff stepped and stood on the inside foot-board of one of the cars, on account of its being so full of passengers, and without any vacant seat; and, while so standing, it passed a car on an adjoining track, which was off the track on the inside, and which was so near as to strike the plaintiff, and injure him. The injury was not great, and the damages found by the jury were only $25. The jury found that there was room inside of the car, at the time, which the plaintiff might have occupied, and that the plaintiff knew that he was standing in a dangerous place; and these findings were supported by the evidence. This last fact the plaintiff admitted, but on cross-examination explained that he meant he had found out by the collision or accident that he was in a dangerous place. The conductor of the car testified that he said to the plaintiff: These facts the jury were warranted in finding from the evidence. In answer to the tenth question of the special verdict, as follows: “Was the plaintiff guilty of negligence contributing to the injury complained of?” the jury answered: “Yes.”
On this appeal, this finding of the plaintiff's negligence is the only one that is material to be considered, for it is fatal to the plaintiff's case, unless it was unsupported by the evidence, which we have seen it was not, but warranted by the facts proved. That such is the law has grown to be elementary. Any negligence of the plaintiff, however slight, that contributed to the injury complained of, precludes his recovery. Stucke v. Railway, 9 Wis. 202; Railway v. Hunter, 11 Wis. 160;Rothe v. Railway, 21 Wis. 256; Potter v. Railway, Id....
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