Shenners v. W. Side Street-Railway Co.

• Decision Date: 16 December 1890
• Citation: 78 Wis. 382,47 N.W. 622
• Parties: SHENNERS v. WEST SIDE STREET-RAILWAY CO.
• Court: Wisconsin Supreme Court

78 Wis. 382

47 N.W. 622

SHENNERS

v.WEST SIDE STREET-RAILWAY CO.

Supreme Court of Wisconsin.

Dec. 16, 1890.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

Clybourn street, in Milwaukee, runs east and west, and crosses Clermont street at right angles. The complaint alleges, in effect, that the plaintiff was a resident of Milwaukee, and three years of age; that the guardian was appointed October 3, 1888, as stated; that the defendant was a corporation, created and existing under, and by virtue of, the laws of this state, and the ordinances of said city, and engaged in operating and running street-cars, propelled by horses, for the purpose of carrying passengers, for hire, upon and over said Clybourn and other streets of said city; that, August 19, 1888, a certain car of the defendant, propelled by horses, was, by its servant, being driven upon said Clybourn street while said plaintiff was lawfully crossing on the east side of said Clermont street, and the defendant, by its servant, so negligently drove and conducted said street-car that, thereby, the same ran and was driven against the plaintiff, and seriously and permanently injured him, to his damage in a sum named; that said Clybourn street, and other streets, upon which the defendant was so operating its street railway, were public highways and thoroughfares, over which great numbers of citizens of said city were constantly passing and repassing; that in addition to the negligence mentioned, and for more than six months immediately prior to August 19, 1888, the defendant negligently and unlawfully suffered and permitted that portion of said Clybourn street, at the crossing at the intersection of the same and Clermont street, to be and remain out of order and insufficient, by suffering and permitting that portion of Clybourn street, at said crossing, lying between the outside rails of said tracks, to be and remain below the grade of the surface of the balance of said street, and below the top of said rails upon said track, the distance of six to eight inches; that the defendant carelessly and negligently permitted said car to get out of repair, so that the brakes, and other appliances thereon, were and had become out of repair, worn, broken, and unserviceable, so that they would not stop the said car with reasonable certainty or dispatch, or within a proper and reasonable distance, yet that the defendant carelessly and negligently used and operated the same, as aforesaid, and the defendant's servants so negligently drove and conducted said unsafe, dangerous, and unserviceable car, that thereby the same ran and was driven against the plaintiff, and seriously injured him, as aforesaid, whereby he was permanently disabled, losing his right foot entirely, and partly the use of his left foot, besides other great and serious bodily injuries, to his damage in the amount stated. The answer denied all negligence on the part of the defendant, and alleged contributory negligence. At the close of the trial, and under the charge of the court, the jury returned a special verdict to the effect: (1) The plaintiff's injuries, of which he complains in this action, were the result of the negligence of the defendant's driver, who had charge of the car by which the injuries were caused, taking into account the condition of the street, the extent to which it was used, the steepness of the grade, and all the facts and circumstances of the case, bearing upon the question. (2) The parents of the plaintiff were not guilty of negligence in leaving him with their daughter Jane. (3) The said daughter Jane was not guilty of negligence in suffering the plaintiff to go abroad with her younger sister. (4) Said younger sister was not guilty of negligence in leaving the plaintiff with his cousin, as she did. (5) Should the court be of the opinion that the plaintiff is entitled to judgment, we assess his damages at $8,000. (6) The driver of the defendant's car was not driving the horses at an ordinary, usual, and moderate rate of speed, before and at the time of the accident. (7) At the time the driver first saw the child, or could have seen him, in the exercise of proper care, the car was about 90 feet west of the plaintiff, at the east crossing. (8) The child suddenly started from the place where he was first seen by the driver, and ran towards the horses and the car. (9) The child ran between the horses and the defendant's car before he could be prevented, and before the car could be stopped. (10) The driver of the street-car did not have any reason to expect that the child would undertake to cross the street at the time. (11) The defendant company was not guilty of any other want of ordinary care which caused the injury, except the negligence of the driver. Thereupon the plaintiff moved for judgment in his favor and against the defendant, upon the special verdict rendered by the jury; and the defendant moved for judgment in its favor upon the record, pleadings, and the special verdict rendered by the jury. The court overruled and denied the defendant's motion, and ordered that the plaintiff have judgment against the defendant upon said special verdict, upon condition that within five days from the date thereof the plaintiff should remit, from the damages assessed and found by the jury, the sum of $3,000, and, in case the plaintiff failed so to do, then that said verdict be set aside, and a new trial granted, but that, if the plaintiff filed such remittance, then he was to have judgment against the defendant for the sum of $5,000 damages. The plaintiff's attorneys thereupon did remit from said verdict said sum of $3,000, and consented to take judgment for the sum of $5,000, and thereupon the court ordered judgment to be entered against the defendant, and in favor of the plaintiff, for that amount, with costs taxed at $246.83. From the judgment entered thereon accordingly, the defendant brings this appeal.Burton Hanson an...