Walker v. Vill. of Ontario

• Decision Date: 20 June 1901
• Parties: WALKER, v. VILLAGE OF ONTARIO.
• Court: Wisconsin Supreme Court

111 Wis. 113

86 N.W. 566

WALKER,

v.VILLAGE OF ONTARIO.

Supreme Court of Wisconsin.

June 20, 1901.

Appeal from circuit court, Vernon county; E. W. Helms, Judge.

Action by Lewis R. Walker against the village of Ontario. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Action to recover damages for personal injuries. Plaintiff was steersman on a traction engine weighing 9,500 pounds. In attempting to cross a bridge in the defendant village, it broke down, and plaintiff was precipitated into the stream, and received serious injuries. The bridge had been built some 12 or 13 years. Its timbers were badly rotted, and the braces decayed considerably. Plaintiff was familiar with the bridge, passing over it daily, but had never noticed its defective condition. He had known the bridge 12 or 13 years, and the only repairs he knew had been done to it was that it had been replanked. It had a span of 20 feet, and broke nearly in the middle. Before crossing, the bridge was spanned by elm planks 2 inches thick, from 12 to 14 feet in length, and from 8 to 10 inches wide. Testimony was offered and received showing the manner in which the planks were laid, the care used in crossing, the rotten and defective condition of the timbers and braces, and that the average life of a wooden bridge was about eight years. At the close of plaintiff's testimony a motion was made for a nonsuit, on the ground that the evidence affirmatively showed a failure to comply with subdivision 5, c. 197, Laws 1899, and that plaintiff was guilty of contributory negligence. The motion was granted, the court stating, among other things, that “I don't think the court can take judicial notice of the fact that traction engines are in common use over the highways in this vicinity.” From a judgment for defendant, the plaintiff brings this appeal.

C. M. Masters, for appellant.

Graves & Mahoney, for respondent.

BARDEEN, J. (after stating the facts).

One of the grounds urged to justify the nonsuit is that plaintiff failed to comply with the requirements of chapter 197, Laws 1899. That chapter provides, among other things, that the owner of any steam engine who propels or causes it to be moved along or upon any culvert or bridge shall be liable for all damages (subdivision 5) “when the person in charge of any steam engine shall neglect to span any bridge or culvert, before crossing the same, with hard-wood planks, at least two inches thick and twelve inches wide, so that the engine shall rest thereon in crossing such bridge or culvert.” Plaintiff's testimony as to the manner in which the bridge was planked is as follows: “Mr. Ritske and I put the plank on the bridge. The plank used were some planks lying there. They were rock-elm plank, I think. They were good, sound plank. Were reasonably straight. The plank were twelve feet long; perhaps one or two fourteen feet. I think one or two of the plank were eight inches wide, and the balance ten inches wide, and one or two twelve inches wide. Am not positive that there were any twelve inches wide. The plank run across the bridge from cap to cap. Then laid down another plank beside them, so as to break joints. Planked both sides alike. * * * The plank were laid side by side, end to end, and another row, breaking the joints, at the side. The joints were broken by laying the plank side by side. The wheels were kept on the plank.” The argument is that, because the planks used were not 12 inches in width, the statute has not been complied with, and hence there can be no recovery. If we understand the testimony quoted, the track upon which the wheels of the engine run was more than 12 inches in width, but was made up of...