Wanta v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 20 February 1912
• Court: Wisconsin Supreme Court
• Parties: WANTA v. MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.

148 Wis. 295

134 N.W. 133

WANTA

v.MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.

Supreme Court of Wisconsin.

Jan. 9, 1912.

On Modification of Mandate, Feb. 20, 1912.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by Stephen A. Wanta, as administrator of the estate of Frank Glass, deceased, against the Milwaukee Electric Railway & Light Company and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

On February 22, 1909, Frank Glass, the decedent, while driving a team of horses, hitched to an empty coal wagon, east on Oneida street in the city of Milwaukee, fell from the wagon to the pavement, sustaining injuries which caused his death. This action is brought to recover damages for the death of said Glass, the complaint alleging that the defendants permitted large holes to exist in the pavement at and near the point of the accident, both in the portion of the street maintained by said city and the portion between the tracks and one foot outside of each rail, maintained by the defendant railway company; that one of the wheels of the wagon on which decedent was riding dropped into a hole in the pavement, suddenly jerking and rocking the wagon in such a manner that decedent was thrown therefrom. The defendants answered separately. The city denied that any want of repair or insufficiency existed in said pavement, but alleged that if any such defects did exist the defendant railway company was responsible, and not the city. The answer of the railway company was a general denial of the allegations of the complaint. On a directed verdict, judgment was entered, dismissing the complaint as to each of the defendants, and from such judgment plaintiff appeals.Rubin & Lehr (Horace B. Walmsley, of counsel), for appellant.

Van Dyke, Rosecrantz, Shaw & Van Dyke, Daniel W. Hoan, City Atty., and W. H. Timlin, Jr., Sp. Asst. City Atty., for respondents.

BARNES, J. (after stating the facts as above).

The witnesses for the defense testified, in substance, that when the front wheels of the wagon which deceased was driving struck the north rail of the north track the wheels skidded along the rail to the right for some distance, and that it was this movement that caused the decedent to fall. These witnesses negative the idea that the fall was caused by one or more of the wagon wheels dropping into a hole. The witness Bork testified for the plaintiff that the wagon wheels dropped into one and probably two holes before the deceased was thrown out; that the left front wheel of the wagon came in contact with the south rail of the north track, and the right front wheel in contact with the north rail of the south track, and that the wagon slid to the east, until the left wheel dropped into a hole, and the sudden stop threw deceased out. The testimony of this witness, as it appears in the record, is very confusing. Some of it was given with reference to a plat which the witness had before him, and this evidence is entirely meaningless to us. We think the foregoing statement contains a synopsis of what the witness testified to.

[1] John Schwartz testified that he was an eyewitness to the casualty, and that the wagon struck one or two holes before the deceased was thrown off, and that his fall was caused by one of the wagon wheels dropping into a hole, which seems to have been between the rails of the south track of the street railway company. In any event, the witness testified that he showed the hole to the plaintiff, Wanta, the following morning, and Wanta testified that the hole shown him was between the rails of the south track. The latter also testified that this hole was about 1 1/2 by 2 feet in size, and was 6 inches deep, and that he ascertained the depth by placing a stick 40 inches long over the hole and measuring the distance with a rule from the bottom of the stick to the bottom of the hole. Witness said the stock was not real straight. Schwartz in testifying at the coroner's inquest seems to have located the hole between the rails of the north track, and, at least to this extent, there is some contradiction in his testimony.

There is no doubt that there were a number of holes in the street near where decedent met his death. One witness said there were as manay as 15, and it is not seriously claimed that there were not some holes, because several were filled with fine gravel immediately after the accident. There was evidence offered by the defendants to show that the gravel had been cleaned out of these holes a few weeks afterward and a straightedge placed over them, and the depths measured by a civil engineer. He found 11 holes or depressions in the street in the vicinity of the place where the accident occurred, varying in depth from 1 inch to 4 1/4 inches. He located 3 of those between the rails of the south track, and found that the hole which Wanta evidently described was only 1 3/4 inches in depth. If this testimony is true, then there is no actionable negligence on the part of the city. Kawiecka v. Superior, 136 Wis. 613, 118 N. W....