Zimmer v. Fox River Valley Elec. Ry. Co.

• Decision Date: 10 January 1905
• Citation: 101 N.W. 1099,123 Wis. 643
• Parties: ZIMMER v. FOX RIVER VALLEY ELECTRIC RY. CO.
• Court: Wisconsin Supreme Court

123 Wis. 643

101 N.W. 1099

ZIMMER

v.FOX RIVER VALLEY ELECTRIC RY. CO.

Supreme Court of Wisconsin.

Jan. 10, 1905.

Appeal from Circuit Court, Outagamie County; John Goodland, Judge.

Action by Waldemar Zimmer against the Fox River Valley Electric Railway Company. Judgment for defendant. Plaintiff appeals. Reversed.

This case was before this court on a former appeal, which is reported in 118 Wis. 614, 95 N. W. 957. The action is brought to recover damages for a personal injury which plaintiff claims to have sustained through defendant's negligence. It appears that plaintiff at the time in question was riding on one of defendant's street cars in the city of Menasha, and that he fell off the car while it was passing over a curve in the track, receiving some injuries. At the conclusion of the testimony, defendant requested the court to direct a verdict in its favor upon the ground that no actionable negligence had been shown against the defendant, and upon the ground that plaintiff had been guilty of negligence contributing to produce the injury complained of. The court directed such a verdict, and awarded judgment of dismissal. This ruling is alleged as error, and this is an appeal from the judgment dismissing the cause.Eaton & Eaton (H. I. Weed, of counsel), for appellant.

J. C. Kerwin, for respondent.

SIEBECKER, J. (after stating the facts).

The direction of a verdict in defendant's favor is assigned as error upon the ground that the evidence tending to show actionable negligence by defendant was fully as strong upon this trial as upon the former. On the former, the trial court refused defendant's request to take the case from the jury for want of any evidence tending to show the negligence charged, which ruling, upon an appeal to this court, was affirmed. Defendant then insisted that there was not sufficient evidence to sustain a finding of negligence, and that plaintiff was guilty of contributory negligence. This court, in reviewing the evidence, found: Plaintiff had testified “to the effect that when he got onto the car it was full; that he at first stood on the lower step, and then on the upper step or platform, and held himself to the iron railing--the brass railing * * * on the back end, at the window, close to the door; that the car was overcrowded; that, when the conductor came around and collected fare, he put his hand in his side pocket and took out the money to pay his fare; that when he got at the curve the twist and fast driving around the curve threw him off and injured him. * * * Other witnesses testified * * * to the effect that the plaintiff fell off the rear platform, head first, just as the car got past the curve, and the car was running perhaps five miles an hour, and as it came to this curve it gave a twist and threw him off; * * * that the car was overloaded; * * * that the car went onto the curve just as it came down the main track; that the curve was sharp, and the car naturally gave a twist. Another witness testified * * * that as the car struck the curve it gave a very sudden lurch, and turned very sharply; the back end of the car came in view very suddenly; that the car came about the usual speed for it on Main street; that he did not notice any slackage at all; that it seemed to run...