Spencer v. Chi., M. & St. P. Ry. Co.

• Decision Date: 09 January 1900
• Citation: 81 N.W. 407,105 Wis. 311
• Court: Wisconsin Supreme Court
• Parties: SPENCER v. CHICAGO, M. & ST. P. RY. CO.

105 Wis. 311

81 N.W. 407

SPENCER

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Jan. 9, 1900.

Appeal from circuit court, Walworth county; Frank M. Fish, Judge.

Action by Alice Spencer against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

This is an action for personal injuries, and the plaintiff appeals from a judgment of nonsuit. It appears from the evidence that the plaintiff was a passenger upon the defendant's railway on the 3d day of September, 1895, and was riding upon one of the defendant's trains from the city of Chicago to a station called “Western Union Junction,” in Racine county, Wis., on the afternoon of that day. She was riding upon the east or right-hand side of the car, and, the day being warm, the car window was open. She was nearly or quite asleep, with her head leaning back against the back of the seat, when a stream of dirty water came through the open window, and struck her on the side of the head with considerable force, and wetting her considerably. Her testimony tended to show that the water penetrated her ear, and caused serious trouble thereafter with that organ. The plaintiff herself had no knowledge of where the water came from. But one witness was called who attempted to give any testimony as to the source of the stream of water. This witness was a man named Young, who was also a passenger upon the car. He testified that he saw Mrs. Spencer upon the train, and that when the train was about half way between Chicago and Western Union Junction some water splashed into the open window ahead of him, and on the panes of the other windows along the side of the car; that it was a fair-sized stream, and came with quite a little force, and ran along the whole side of the car; that he could not state positively where it came from; that there was some object or building,--he did not know whether it was a building or object, but it was his impression that it was a water tank, but he could not state positively; that he judged the train was running 40 or 50 miles an hour; that it did not stop between Chicago and Western Union Junction; that he thought it was in the neighborhood of Wadsworth station; that he knew that station was about halfway between Western Union Junction and Chicago, and that the train was nearly halfway from Chicago at the time; that that was all he know that would connect this accident with the proximity of Wadsworth; that he knew that Wadsworth is nearly halfway between Western Union Junction and Chicago; that his impression was that it was somewhere about halfway between Chicago and Western Union Junction, and that, if Wadsworth is about halfway, it might have been at Wadsworth; that he did not know that he saw a structure, and could not state whether it was a water tank, building, or what it was; that when the water struck the window it attracted his attention, and he turned in that direction, but not quick enough to ascertain what shape or where the water came from; that he...