Thrasher v. Postel

• Citation: 79 Wis. 503,48 N.W. 600
• Parties: THRASHER v. POSTEL ET AL.
• Decision Date: 09 April 1891
• Court: Wisconsin Supreme Court

79 Wis. 503

48 N.W. 600

THRASHER

v.POSTEL ET AL.

Supreme Court of Wisconsin.

April 9, 1891.

Appeal from circuit court, Grant county.

Action for damages by Sarah C. Thrasher against John Postel and John N. Swingle. Verdict and judgment for plaintiff. Defendants appeal.Brooks & Blanchard, W E. Carter, and A. R. Bushnell, for appellants.

Spensley & McIllion and J. M. Smith, for respondent.

TAYLOR, J.

The respondent brought this action to recover damages for personal injuries, which she claims were caused by the negligence of the appellants. The material facts in the case are the following: On the 12th of December, 1888, the respondent and her husband were on their way home from a visit to her mother. They were traveling with a team of two mules attached to a one-horse single-seated conveyance, with a tongue attached instead of thills. A small boy was in the buggy with them, seated on the bottom of the buggy, in front of the plaintiff. The highway upon which they were traveling crossed the Wisconsin river at Muscoda upon a toll-bridge, owned by and in the possession of the defendants. The plaintiff and her husband had crossed the bridge five days before, when going north on their visit, and had at that time paid the toll for crossing and for the return trip. The bridge was at the time undergoing repairs, or in the process of reconstruction. Whether this fact was known by the plaintiff or her husband before they attempted to cross the bridge on their return trip is not very clearly shown by the evidence. However that may be, the evidence is undisputed that the bridge was kept open for travel, and that tolls were taken for crossing the same when the accident occurred. The testimony on the part of the plaintiff shows that just before the accident the plaintiff and her husband started to cross the bridge from the north side; they met a team crossing from the south, and stopped their mules to fix or tie a halter which had become loosed. This was on the turnpike, or, as it was called, the “dump,” and near where the bridge structure commenced on the north side. The bridge is composed of trestle-work for some distance before it reaches the water. After tying the halter, the husband got into the buggy, and drove on to the bridge some 300 feet, when the mules stopped, and pricked up their ears, as though frightened at something. The husband then noticed men working on the bridge, about 300 feet distant, about and upon a truss, about 16 feet high above the floor of the bridge. The testimony of the husband is that when the mules stopped and he saw the men working above the bridge, thinking there might be some danger,he immediately jumped from the buggy, and put up his hands to help his wife out, and immediately and before she could get up the mules began to back, and thereupon he seized them by the bits or bridles, and attempted to hold or stop them. The off mule backed with more force than the other, and cramped the buggy across the bridge, and, in spite of his efforts to stop them, the hind wheels of the buggy went off the side of the bridge and dropped down, and threw the plaintiff and the boy to the frozen sand, about 12 feet below; and by the fall the plaintiff was seriously injured. When the wheels went off the bridge, the tongue broke, and the mules remained on the bridge. At the point when the buggy went off the bridge, the railing of the bridge had been removed by those working on the bridge, and there was nothing to prevent the buggy from going over, except an oak post 6 inches square, which had been there for about 20 years as a part of the old railing of the bridge. This version of the accident was disputed by the appellants, and their claim is that the off mule was a vicious animal, and the husband knew the fact, and that, when the mules stopped on the bridge, the husband, fearing that he would have difficulty in passing over because of the men working thereon, and because of the elevated trusses or iron-work, got out of the buggy while the mules were standing still, and took them by the bridles, and undertook to turn the buggy around on the bridge for the purpose of returning to the north side; and that in his effort to turn the buggy, on account of the narrowness of the bridge, the buggy was backed off the bridge.

After the accident the plaintiff and her husband remained at the house of McVeagh until the 17th. While there she was attended by a physician, Dr. Jameson. The doctor testified that he made a thorough examination, and in his opinion there were no internal injuries, and no bones broken, and that she suffered from a nervous shock. On Friday he thought her dong well, and told her and her husband that he thought she would not need further medical attendance. Dr. Jameson says that the husband then spoke of going home, and he advised him not to go; that she had better remain a few days longer, till she got better able to travel; that he did not think she was strong enough to take the trip. He said, “No;” he intended to go home, and his wife wanted to go, and he was going. He says he then told the husband that if he did he did it at his own risk; that he would not be responsible for the result. This conversation with the husband was not in the presence or hearing of the plaintiff. The doctor also testified that on Sunday before she left for home he said to the plaintiff that it would not be safe for her to take the journey home; that, although she did not need his services further, still he advised her strongly not to take the trip. The plaintiff denies that the doctor gave advice to her as above stated, and, on the contrary, she testified “that on Sunday night Dr. Jameson told her that her husband could take her home at any time, and gave me orders when I went home to take fresh cream, and make salve, and rub myself; and he said, ‘You can go home at any time.’ ”

The evidence as to the cause of the injury is not disputed. The fall from the bridge caused the first injury, and on the whole evidence there can be but little doubt that the injury was of a much more serious character than was supposed by Dr. Jameson. Upon the question as to how the buggy came to go off the bridge the facts are disputed, and it is contended by the learned counsel for the appellants that there is such a great preponderance of the evidence supporting the contention of the appellants that the plaintiff's husband, without any necessity therefor, undertook to turn upon the bridge, and in so doing backed the buggy off the bridge, that it became the duty of the court to have directed a verdict for the appellants. It is unnecessary to give any further statement of the evidence, except to say that there is very little evidence tending to show that the mules, or either of them, were vicious, and considerable evidence tending to show that they were quiet and easily handled.

The jury found a...