Luebben v. Wisconsin Traction, Light, Heat & Power Co.

141 N.W. 214, 154 Wis. 378, 1913 Wisc. LEXIS 236

• Court: Wisconsin Supreme Court
• Decided: October 7, 1913
• Status: Published

Opinions

Tbe following opinion was filed April 29, 1913:

ViNje, J.

Defendant argues that the answers returned by the jury to questions 8 and 9 are not inconsistent with the answer to the seventh question, and that hence it was entitled to judgment upon the verdict as returned. We are satisfied that the trial court properly changed the answer to question 9 from No to Yes, and that the verdict so changed called for a judgment in favor of the defendant, and shall therefore not consider the-alleged inconsistency of the jury’s findings. the cáse seems to be barren of any contributory negligence, strictly so called, on the part of the deceased, and the court’s change of answer to question 8 must be construed only as a finding that the deceased assumed the risk. At any rate, if the evidence shows that the risk' of the uneven track was assumed by the deceased recovery cannot be bad.

A considerable portion of tbe argument in behalf of tbe plaintiff is to tbe effect tbat defendant failed to furnish tbe deceased a safe place in which to work owing to the roughness of the track generally and the special defect at the place of the injury, and that it was negligent in not repairing the track. Defendant’s negligence is a verity in the case, and no time need be devoted to a discussion of that question. The plaintiff’s witness Turkow, wbo was the motorman at the time of the injury, after testifying generally to the roughness of the track all along State street, thus described the place where deceased fell from the car:

“Eight on Seventh street, on tbe north end on tbe north crossing of Seventh, there was a kind of a bole there, and the rails didn’t come together. About an inch or an inch and a half of tbe rails were loose. There was a give to tbe rails, that is where tbe rails were fastened there was a give. There was a bole, and every time we went over there when tbe trucks struck thát, there was a jolt. . . . Tbe condition of tbe rails at Seventh street caused tbe car to jolt whenever it would strike that' hollow place. Every time you went over that place it would give the motion of tbe car wbicb I described. It threw the car. When tbe car went down, it seemed as though it struck something right there, and it kind of jerked tbe car. I felt that. I always felt tbe jar on tbe front trucks, but I could not feel tbe rear.. I felt tbe same motion every time I went south for several months before tbe accident. Tbe cars would always swing there, but this [referring to tbe time of the injury] was kind of a sudden jerk. We were running as usual that night. I felt tbe same motion coming over after tbe accident.”

Plaintiff’s witness Wirtz testified to tbe effect that be saw Luebben on tbe ear tbe night of tbe accident, as tbe car was about ten or fifteen feet north of'the north crossing at Seventh street. As tbe car struck that crossing Luebben’s feet went up and bis bead and shoulders down. Tbe witness Zuehlke testified:

“I saw Ben Luebben collecting fares on State street. I noticed him walking along tbe running board towards tbe front end of tbe car, collecting fares, and on bis return be came to the rear end of the car and attempted to reach np to something, and then all of a sudden I noticed he was off the car, and apparently on the ground on his head and shoulder.”

Thus the evidence discloses that the deceased, who was forty-two years old, received injuries resulting in death by being thrown from the running board of an open car at a place where the track was defective while the car was operated in the usual manner and at the usual rate of speed; that it was the second summer of his experience as a street-car conductor,- and that for over a month previous to the injury he had many times daily passed oyer the same defect in the track when it jolted the car substantially in the same way. It seems to us that the only reasonable inference to be drawn from the undisputed facts in the case is that' the deceased knew of the defect and appreciated the risk of injury arising therefrom. Who better than an adult person that has daily traveled back and forth on a running board as the car passed over a rough track can appreciate the danger of being thrown therefrom and sustaining an injury as a result of the fall? It is not necessary that he should be held t'o have anticipated the precise injury or the particular manner in which it occurred, or the exact extent thereof. It is sufficient if he, as a reasonably prudent man, ought to have anticipated that some injury might probably, result from his being thrown from the car on account of the defective track. Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568; Coel v. Green Bay T. Co. 147 Wis. 229, 133 N. W. 23; Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741. Among cases in our own court that tend to sustain the conclusion reached, though under a different state of facts, maybe cited: Laughy v. Bird & W. L. Co. 136 Wis. 301, 117 N. W. 796; Hanson v. Superior Mfg. Co. 136 Wis. 617, 118 N. W. 180; Mahar v. Montello G. Co. 146 Wis. 46, 130 N. W. 949; Jones v. Milwaukee E. R. & L. Co. 147 Wis. 427, 133 N. W. 636; and Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741.

By the Court. — Judgment affirmed.