Thoresen v. La Crosse City Ry. Co.

• Decision Date: 01 May 1894
• Parties: THORESEN v. LA CROSSE CITY RY. CO.
• Court: Wisconsin Supreme Court

87 Wis. 597

58 N.W. 1051

THORESEN

v.LA CROSSE CITY RY. CO.

Supreme Court of Wisconsin.

May 1, 1894.

Appeal from circuit court, La Crosse county; A. W. Newman, Judge.

Action by Bersven Thoresen, administrator, against the La Crosse City Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

This action is for damages for the death of the plaintiff's intestate, caused by alleged negligence of the defendant. The complaint states, in substance, that October 17, 1892, between 7 and 8 o'clock in the evening, the deceased was traveling in a wagon draw by a horse along King street, in an easterly direction, and while crossing Fourth street, at the intersection of these streets, her wagon was struck by a street car of the defendant going in a northerly direction along the center of the latter street, and her wagon was broken and overturned, and she was thrown to the ground, receiving injuries from which she died. Negligence was charged against the defendant, in causing its car to approach, and rapidly pass, said crossing, and carelessly omitting to ring the car bell, or otherwise warn or notify the deceased of the approach of said horse and car, or to stop at said crossing, and permit the horse and wagon driven by the deceased to pass in safety. The defendant denied all negligence on its part, and alleged negligence on the part of the deceased, causing the accident. The circuit court, at the close of the testimony, granted judgment of nonsuit against the plaintiff, holding there was not sufficient evidence of negligence on the part of the defendant to go to the jury, and that the deceased was guilty of contributory negligence at the time, causing or contributing to the accident; and the plaintiff appealed.

It was shown at the trial that a switch or double track in the center of Fourth street, 469 feet long and 13 feet wide, extended across King street at the point in question, 234 feet of which was south of King street, and 169 feet was north thereof. The accident occurred about 7 o'clock in the evening, and it was dark and raining a little. There was an electric light burning over the center of Fourth street, about 410 feet south of King street, and another about 310 feet north thereof. The car was lighted with three lamps on the inside, and had the usual windows in the front and sides; and a pink light could be seen on one side of the front, and a white light in the center of it. The city wood and hay market is at the northeast corner of the intersection of these streets, and on the southwest corner is a schoolhouse, on the southeast corner is a public park, and on the northwest corner is a bakery and restaurant, and the crossing is in a much-traveled portion of the city. The deceased had been to deliver milk at the bakery, accompanied by a boy, Harold Wold, about 13 years of age, who assisted her. The horse and wagon stood on the south side of King street, facing west, when they got in, and turned around and started easterly along said King street across Fourth street. Harold Wold testified, on behalf of the plaintiff, that they saw street cars on the track on Fourth street; one about half a block south of King street, and one crossing King street, going south. “It seemed to us as if the one about half a block south was standing. We crossed the street right after the car going south passed us, and we lost sight of the car standing on the south side that was going north. I don't know how we lost sight of it. We crossed over just as quick as the car going south passed us. It was right at the side of her horse. We didn't then look at the other car,--the one standing. When we got on the first track, we saw the standing car coming very fast. The car driver driving the car coming from the south was looking back, and he continued looking back as long as I saw him. I didn't see him try to stop the car. When we were on the last track the car struck the wagon. The deceased had the whip in her hand, and used it, and tried to drive fast, but it was too late. When the car struck the wagon, I fell out on the side. The seat came on the side, and I went onto the ground. The wagon was thrown on Fourth street, on the south side of King street, towards the park. One of the hind wheels was broken. Didn't see the driver just all the time, on the car coming south. As we got on the second track, we saw him. When we got to the first track the other street car was about two rods off, and we thought we had plenty of time, and drove on; and as the last wheel was on the track the street car struck us, and the streetcar driver was looking behind. The horse stopped right off; only went a few steps, and stood still. Were on the first track when the street car was two rods off. The deceased was going to the water trough to water the horse, or across the street. We had another place to deliver milk, down on Fourth street, and across the street from where we started,--the second house from the park. Were going straight ahead when she fell out. Were not going down Fourth street at the time. Were tipped out on Fourth street, just below the crossing. I don't know how many feet below. The east side of the car struck the wagon. I saw what the driver was doing. He was looking back. Don't know when he stopped looking back, but I saw him when the car struck the wagon, and he was then looking back. He didn't have hold of the brake, trying to set it. I just looked up, as the car struck the wagon. Don't know what he was doing before then. Didn't see him handle the brake at all. Deceased took up the whip just when we got on the last track, and the horse on the horse car struck the wheel pretty near then. The car struck the hind wheel, and that tipped the wagon up, and threw it on the side. Didn't see the driver of the car just when it was two rods off, but did as soon as we got pretty near across. He was two or three feet off when the car struck the wagon.” The testimony was that the car was going at a good brisk walk; an ordinary speed; not very fast. The deceased was found lying 20 or 30 feet south of King street. Plaintiff at this point rested his case, and the defendant's counsel moved for a nonsuit, but the court overruled it. Evidence was given by the driver that it was so dark he could not see anything; that there was a good bell on the horse; that he passed a south-bound car between King and the next street south, standing on the south part of the switch; it had got down near the end of the switch, and it was about 170 feet south of King street; that he wanted to change off to his own car, so he brought his car pretty near to a standstill; that he thought the south-bound car was No. 3,--his own car; found it was not his car, let the brake...