Wilbert v. F. Zurheide Brick Co.

• Decision Date: 17 April 1906
• Citation: 129 Wis. 1,106 N.W. 1058
• Parties: WILBERT v. F. ZURHEIDE BRICK CO. ET AL.
• Court: Wisconsin Supreme Court

129 Wis. 1

106 N.W. 1058

WILBERT

v.F. ZURHEIDE BRICK CO. ET AL.

Supreme Court of Wisconsin.

April 17, 1906.

Appeal from Circuit Court, Sheboygan County; Michael Kirwan, Judge.

Action by Louisa Wilbert, as administratrix of Hugo Wilbert, deceased, against the F. Zurheide Brick Company, the City of Sheboygan, and the Sheboygan Light, Power & Railway Company. From a judgment for plaintiff, defendant the Sheboygan Light, Power & Railway Company appeals. Affirmed.

The appellant, the Sheboygan Light, Power & Railway Company, is a corporation conducting its business in the city of Sheboygan, under authority granted it by the city. It maintains the poles, wires, lamps, and station necessary for an electric lighting business. In June, 1902, it maintained a street light at the intersection of North Thirteenth street and Erie avenue. In maintaining this light it had placed one electric light pole at the northeast corner, and another at the southwest corner, of the intersection of these streets. To the tops of the poles was attached the span wire from which the street lamp was suspended. A guy wire was attached to the pole at the southwest corner of this street crossing and was also fastened, about four feet from the ground, to a guy post, placed to the west, between the sidewalk and the gutter. A thin wire had been stretched from this guy post, about four feet from the ground, to a tree, at about nine feet from the ground. The tree was located to the east and near the light pole at the southwest corner of the street crossing. This wire had been placed there by one Mr. Zurheide, who resided on the adjoining premises, for the purpose of holding the tree upright and to prevent its branches from dropping onto a railway gate near the tree. This wire was fastened to the tree by a strap and was wound around the guy post in contact with the guy wire. The street lamp, which was suspended by an interlocking device from the span wire near the center of the street crossing, had a rope attached to it which led to the light post and was used to raise and lower the lamp. When the lamp was completely raised, the only break in the metallic connection from the lamp to the span wire was an insulator of the usual type. This was placed there to prevent the electric current, which fed the lamp, from passing from the lamp to the locking device, and thence to the span wire and the other connections forming a conductor for the electric current. The complaint alleges that the Sheboygan Light, Power & Railway Company negligently constructed and maintained its plant at this street crossing; in that it placed the guy post with the guy wire attached too near the ground and in contact with the span wire near the top of the light pole, and that it negligently used a defective insulator between the lamp and the span wire, and failed to exercise due care to discover the tree wire, the broken insulator, and the consequent escape of the electric current. It is further alleged that, by reason of such neglect, on the night of June 6, 1902, one Hugo Wilbert, without fault on his part, while lawfully traveling on the street crossing, came in contact with this tree wire, charged with the electric light current, which had passed through the defective insulator and thence to the locking device and the connecting wires, causing his immediate death. This action is brought to recover the damages resulting from his death.

At the conclusion of plaintiff's evidence, the defendant the Sheboygan Light, Power & Railway Company moved for a nonsuit and also for a direction of a verdict in its favor. Both of the motions were denied. The case was then submitted to the jury upon a special verdict, and they found in effect: (1) That Wilbert was killed by an electric current by coming in contact with the tree wire; (2) that the insulator above the lamp was cracked and defective, permitting the electric current to pass from the lamp through the locking device to the span wire; (4) that the span and guy wires were in close proximity at the top of the light pole; (5) that the electric current passed from the lamp through the defective insulation, then through the locking device and the span, guy and tree wires, and thence through Wilbert's body to the ground; (6) that this condition of the lamp, wires, and post, and the escaping electricity, made the street insufficient and dangerous at this place; (7) that the defendant, in the exercise of ordinary care, ought to have discovered these defective and dangerous conditions and to have remedied them before Wilbert was killed; (8) that these defects were the proximate cause of his death; (9) that he was free from contributory negligence in coming to his death. After verdict, appellant moved for judgment notwithstanding the verdict, and, in case of such motion being denied, it moved to change the answers to questions 7 and 8 of the verdict, by striking out the answer “Yes” to each of them, and by inserting the answer “No,” and by striking out the answers to questions 9 and 10. These motions were denied, and judgment was awarded plaintiff upon the verdict as rendered by the jury. This is an appeal from such judgment.Francis Williams (W. M. Wherry, Jr., and William Osgood Morgan, of counsel), for appellant.

Simon Gillen and ...