Dunham v. Wisconsin Gas & Electric Co.

280 N.W. 291, 228 Wis. 250, 1938 Wisc. LEXIS 180
CourtWisconsin Supreme Court
DecidedJune 21, 1938
StatusPublished
Cited by11 cases

This text of 280 N.W. 291 (Dunham v. Wisconsin Gas & Electric Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunham v. Wisconsin Gas & Electric Co., 280 N.W. 291, 228 Wis. 250, 1938 Wisc. LEXIS 180 (Wis. 1938).

Opinion

Nelson, J.

The defendants first contend that the plaintiff failed to meet the burden of proving negligence on their part, and that the defendants were guilty of no negligence and violated no duty which they owed to’ the plaintiff. These contentions necessitate a recitation of the facts.

On August 17, 1936, the plaintiff, who' at that time was sixty-six years of age and weighed one hundred ninety pounds, was standing on the west crosswalk of Park avenue, a north-and-south street, in the city of Racine. She had stepped from the sidewalk and had taken two or three steps into the street. She intended to proceed in a southerly direction across Seventh street and then westerly to her home. While the plaintiff was standing there, a “tree trimmer” truck, belonging to Wisconsin Gas & Electric Company, but which had been loaned to the Milwaukee Electric Railway & Light Company, hereinafter called the “defendant company,” and which was in charge of its servant, Willis Fisher, was approaching from the west on Seventh street. The truck [253]*253was traveling at a speed estimated by several witnesses to be between fifteen and thirty miles per hour. At that time there was trailing behind the truck thirty or forty feet of No. 8 insulated wire. As the truck proceeded, the wire whipped back and forth from one side of the street to the other. The end of the trailing wire struck the plaintiff’s right ankle, wound itself around it, violently pulled her to- the ground, and dragged her ten or fifteen feet before the wire became detached from the truck and fell upon the street. The wire which was picked up by the police officers was a little over ninety-five feet in length. The plaintiff, as a result of the accident, sustained a fracture of the skull, severe injuries to her right shoulder and right ankle. Fisher, the driver of the truck, did not know that the wire was trailing and did not know that any accident had occurred until he was informed thereof some time later after reaching the garage of the Wisconsin Gas & Electric Company. Other specific facts will be stated in connection with the defendants’ contentions.

Was there evidence which, when fairly and reasonably considered, permits of the inference that the defendants failed to exercise ordinary care which caused the plaintiff’s damages? The evidence overwhelmingly supports the inferences : That just prior to the accident, the wire was trailing from the back of the truck; that it was whipping back and forth across the street; that it struck the plaintiff and wound itself around her ankle; that she was, as a result thereof, violently pulled to the street and dragged a number of feet, and that her injuries were caused by the wire trailing from the truck.

In submitting the case to the jury, the court instructed the jury that the doctrine of res ipsa loquitur might properly be considered by the jury in determining whether the defendants were negligent. The court instructed fully as to that doctrine, and thereby permitted the jury to infer negligence from, the fact that the accident had occurred.

[254]*254The defendants contend that it was error to' instruct the jury that the doctrine of res ipsa loquitur was applicable to' the facts adduced, because it was not shown that the wire, which caused the plaintiff’s injuries, was under the control and management of the defendants. Stimson v. Milwaukee, Lake Shore & Western R. Co. 75 Wis. 381, 44 N. W. 748; Cummings v. National Furnace Co. 60 Wis. 603, 612, 18 N. W. 742, 20 N. W. 665; Ashton v. Chicago & N. W. R. Co. 198 Wis. 618, 225 N. W. 328.

It is our opinion that no conclusion other than that the wire in question was at the time of the accident under the control and management of the defendants could be sustained. The truck in question was of the type known as a “tree trimmer.” It was used by the defendant company and its servants in repairing street lights and wiring and in trimming trees. It was equipped with such coils of wire as the company might have occasion tO' use. At the rear of the truck was an elevated platform upon which was installed a mechanical tower. The accident happened shortly after 4 o’clock in the afternoon. One of the plaintiff’s witnesses, who crossed Seventh street just ahead of the truck, testified that he saw the wire before it struck the plaintiff; that it was dangling behind the truck and that when it caught her it broke off and came off the truck; that when he first saw the truck he observed the wire which was trailing behind it; that the wire seemed to be attached tO' the rear of the truck. Another of the plaintiff’s witnesses, who was driving his motor vehicle south on Park avenue and who had stopped at the intersection in question to permit the truck tO' go by, testified that when the truck came to the corner it had a wire trailing from the back, swinging back and forth across the street; that a part of the wire was all piled up in a heap on the back of the truck; that the roll on the rear platform broke loose after it had dragged the plaintiff; that the wire was on the [255]*255back end of the truck just as if it had been thrown up on the back end of a truck, and it was wadded up on the truck. The defendant, Fisher, testified that a standard load of wire was carried in the bed of the truck; that the defendant company does all the electric work of the city of Racine; that it looked to him as if the wire in question was used by the defendant company and not by the gas company; that he was not familiar with the make-up of that particular truck. He further testified that he did not, at any time that day, see any wire like this in the back end of the truck, and did not remember any wire lying at the front end of the truck. He admitted, however, that he did not pay any attention to what was on the truck. He further testified that he did not notice any wire lying on the back end of the truck that day when the work in hand was finished. He further testified that that kind of wire is used by the defendant company. Voss, another member of the repair crew, testified that he did not put any wire on that truck that day; that he did not at any time see any wire lying there on the back end. In answer to' the question: “Did you see any [wire] on that truck that day” he answered: ‘ ‘Not on the rear end. There was regular standard equipment but I didn’t see that size on the rear.” He further testified that he did not exactly make an examination of the wire loaded on the truck that day; that he did not see any loose wire there, and did not see any wire hanging from the rear end of that truck. He further testified that: “We generally get the end and make three or four turns around the whole coil and put it out of the way so it won’t get tangled up.” Hone, the foreman of the crew, testified that there was no other wire there (referring to the back of the truck). A Mr. Clark, who was the general foreman of the defendant company, testified that the defendant company used No. 8 wire, and that other contractors bought it from the defendant company and from another Racine company. He testi-[256]*256fled that all wire must be coiled up, and that when the wire is coiled up the ends are wrapped around the coil itself and then, if that is not sufficient, “we use tie wires or pieces left over from other ends.” He further testified that the defendant company used this type of wire, No.

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Cite This Page — Counsel Stack

Bluebook (online)
280 N.W. 291, 228 Wis. 250, 1938 Wisc. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunham-v-wisconsin-gas-electric-co-wis-1938.