QJornpU IGatu i>rljnnl Bitbrata The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024766143 THE) LAW OF NEGLIGENCE IN THE SUPREME COURT OF WISCONSIN. A SUMMARY AND DIGEST OF NEGLIGENCE DECISIONS IN PINNEV'S REPORTS, 3 VOLS., AND WISCONSIN REPORTS, 101 VOLS., PREPARED AND.ARRANGED BY CHARIvES R ^lll LTaN, Esq. MILWAUKEE BAR. CHICAGO: GEORGE I. JONES. 1900. *^t'^ Copyright, 1900. BY CHARLES H. HAMILTON. PREFACE. A New York newspaper recently quoted one of the judges of that city, as saying : "Of the accident and negligence cases that have come before me for trial, fully seven out of every ten have been lost by the lawyers who began them, either through lack of ability or through lack of preparation and famil- iarity with the facts. Very many of the lawyers are unable to frame a proper hypothetical question to put to a medical expert." A statement of this kind is a striking commentary upon the manner in which cases, especially of personal injuries, are rushed into court. A young lawyer, with perhaps very little experience, obtains a case of this nature, and dazzled by the large contingent fee which may ensue, brings his action, having but little knowledge of the facts, and still less of the law, trusting to his lucky star tq. ' 'get the case to the jury. " In this way, numerous meritorious cases are lost, and the already overcrowded calenders of'the triki and appellate courts un- necessarily enciimberdd. y '••■ The law of negligence, as now administered, is probably the most technical branch of the law. Its growth within the past twenty years has been enormous, and equaled only by that on the subject of corporations. This is true not only of the development of the principles of the law, but of the increase in the volume of litigation. F"or instance. Vol. loi, of the Wisconsin Reports, the last one reviewed in this book, con- tains more exclusively'negligence cases than are contained in the first twenty volumes. Fully fifteen per cent, of the cases reviewed by our Supreme Court in the last ten years are of this nature. With the enormous increase in means of transporta- tion, and the new manufactories with their dangerous agencies for industrial warfare, there is little probability of a diminu- tion in the volume of this kind of litigatiorn. But it is for the best interest of all parties that cases without merit should not be forced upon the courts, and also that meritorious cases should be so handled that the welfare of the unfortunate plaintiff should not be neglected. Some five years ago, when the writer was called upon to defend many of these cases, he was greatly handicapped, be- cause of the lack of a complete digest, and was therefore without a key to unlock the stores of negligence decisions. IV PREFACE. He thereupon coipmenced the preparation of a statement of a certain line of cases which eventually developed into this book. It is believed the work will be found eminently use- ful to any one having a negligence case to brief or try. Great pains have been taken to include all cases of this nature. The writer turned the volumes from i Pinney to loi Wisconsin, inclusive, leaf by leaf, and it is believed no strictly negligence case has been omitted. Owing to an unfortunate accident at the printers, the manuscript of five cases was destroyed, and it was not discovered in time to replace them; but as they contained no principles of law not elsewhere in these pages laid down, it was not deemed necessary to reprint them separately. ,With the assistance of the table of Causes of Personal Injuries, and the very complete index, it is believed no mater- ial difficulty will be had in promptly discovering any principle announced by our Supreme Court in negligence cases, or any peculiar state of facts pertaining to any case. The aim has been to make a practical work, and not a theoretical one. The subjects discussed seemed to divide themselves naturally into the, chapters as appears in the table of contents. Fully forty per cent, of the cases that have been reversed by the Supreme Court have been so reversed because of errors in the charge of the trial court. That error is long lived, will be easily ascertained by observing where the same error, con- demmed by the appellate court, time after time, and year after year, is yet repeated. It is hoped that not only members of the bar, but those who have been promoted to the bench, will find, this book helpful to them. A concrete example to a student or young practitioner is often of far more value than pages of abstract reasoning or statement of principles. The writer has, therefore, as far as possible, used the exact language of instructions, special verdicts and questions of evidence wherever possible, in preference to a more condensed statement. That the labors of an overworked profession may be some- what lightened by the use of this work is the greatest wish of the writer. C. H. HAMILTON. Milwaukee, Feb. lo, 1900. TABLK I. CONTENTS. CHAPTER I. ; , ACTIONABLE NEGLIGENCE— PROXIMATE CAUSE. ' . 4.. ,, ,. SECTION. a. Actionable negligence . . . 1-42 b. Proximate cause . 43-61 c. Cases illustrating doctrine .... 62-88 CHAPTER n. CONTRIBUTORY NEGLIGENCE. a. In general 89-128 b. At highway crossings — questions for jury . 129-140 c. At highway crossings — questions for court . . 141-170 d. Cases against municipal corporations . . 171-215 e. Cases against railroads . . . . ' 216-276 t. Miscellaneous cases . . ... 277-299 CHAPTER HI. NEGLIGENCE OF RAILWAYS, OTHER THAN AS CARRIERS. a. Actionable negligence . 300-364 b. Fences and depot grounds 365-395 c. Crossings 396-426 d. Injuries to employees . 427-444 e. Animals, and liability for injury to . . . 445-465 f. Fires x . . . . 466-495 g. Rules and regulations .... . . 496-498 h. Speed of trains . . . . . 499-513 i. Signals 514-524 k. Questions of negligence for jury . . . 525-533 1. License 534-54a m. Lessees . . 544-549 CHAPTER IV. NEGLIGENCE OF COMMON CARRIERS. 550-655 VI CONTENTS. CHAPTER V. NEGLIGENCE OP MUNICIPAL CORPORATIONS. SECTION. Charter and other statutory provisions . . . 656-710 Notice, and requirements thereof .... 711-765 Defective highways . . . • 766-777 Defective sidewallss ... ■ 778-824 Miscellaneous defects ... . 825-851 Liability . . . . • 852-967 Travelers . ■ 968-971 Frightened horses ... ... 972-980 CHAPTER VI. NEGLIGENCE IN RELATION OP MASTER AND SERVANT. a. In general . b. Negligence c. Contributory negligence . d. Appliances and machinery e. Assumption of risk f. Pellow^servants g. Agency . b. Vice-principal ' i. Dangerous place, k. Miscellaneous 981-1004 1005-1012 lOia-1027 1028-1042 1043-1102 1103-1154 1155-1159 1161-1163 1164-1176 1177-1213 CHAPTER VII. NEGLIGENCE OF STREET RAILWAYS, AND MISCELLANEOUS CASES. a. Street railways 1214-1239 b. Telegraph and telephone companies 1240-1250 c. Express companies .... . 1251-1264 d. Malpractice . ... 1265-1271 e. Driving and collisions . 1272-1282 f. Injuries by domestic animals 1283-1288 g. Banks, bank checks and promissory notes . 1289-1300 h. Navigable rivers 1301-1309 i. . Miscellaneous 1310-1391 CHAPTER VIII. PLEADING. a. In general 1392-1398 b. Complaint . 1399-1490 c. Answer .... . 1491-1500 d. Demurrer 1500-1516 e Counterclaim . ... . 1517-1518 1 Amendments 1519-1525 g. Joinder ... . . 1526-1529 h. Survival of actions . . . . . . 1530-1533 i. Motion to ipake more definite and certain . i 534-1 R4K \ Pf'-tif • • • - : 1546-1554 1. Pleading and proof . . . it;(;K ikr!i m. Abatement ; ; ^569 CONTENTS. VU CHAPTER IX. PRACTICE. ' SECTION. a. Verdicts 1570-1583 b. Jury 1584-1597 c. Remarks of counsel 1598-1617 d. Releases 1618-1624 e. Exceptions, and bills of 1625-1648 f. Costs and fees 1649-1661 g. New trial 1662-1712 h. Appeals, and appealable orders 1713-1743 i. Reversal of judgment 1744-1804 k. Miscellaneous 1805-1869 CHAPTER X. EVIDENCE. a. In general 1870-1875 b. Admissions and declarations 1876-1884 c. Competency 1885-1897 d. Presumptions 1898-1910 e. Res gestae 1911-1934 f. Expert evidence 1935-1969 g. Opinion evidence . . .... 1970-1997 b. Preponderance of . 1998-2004 ]i. Credibility of witnesses 2005-2015 k. Impeachment ' 2016-2022 1. Positive and negative testimony 2023-2027 m. Parol evidence -2028 n. Cross-examination and rebuttal . ... . . 2029-2041 o. Hypothetical questions 2042-2048 p. Evidence sufficient to support verdict .... 2049-2059 a. Evidence held admissible ....... 2060-2075 r. Evidence held inadmissible 2076-2088 B. Medical works as 2089-2092 t. Intoxication . 2093-2095 u. Scienter 2096-2098 V. Evidence of custom 2099-2110 w. Evidence of notice of defect 2111-2120 X. Evidence of negligence 2121-2135 y. Evidence of fires 2136-2153 z. Immaterial error 2154-2165 aa. Personal injuries 2166-2174 bb. Municipalities . 2175-2221 cc. Railroads . 2222-2251 dd. Carriers . . 2252-2263 ee. Miscellaneous 2264-2312 CHAPTER XI. NONSUITS. 2313-2348 CHAPTER XII. SPECIAL VERDICTS. a. General principles 2349-2390 b. Inconsistent findings ....... 2391-2411 c. Insufficient verdicts 2412-2418 d. Evasive answers 2419-2422 e. Cases against municipalities 2423-2442 f. Cases against railroads 2443-2469 g. Miscellaneous cases 2470-2501 VIU CONTENTS. CHAPTER XIII. INSTRUCTIONS TO JURY. section; a. In general 2502-253S b. Municipalities — In general 2539-2566 c. Municipalities — instructions approved .... 2567-2592 d. Municipalities — instructions disapproved . . . 2593-2617 e. Municipalities — instructions refused .... 2618-2624 f. Railroads 2625-2708 g. Master and servant ... . . . 2709-2737 h. Miscellaneous cases . . .... 2738-2816 CHAPTER XIV. DAMAGES. a. In general . 2817-2822 b. Instructions as to, asked and properly refused . . 2823-2826 c. Instructions as to, disapproved 2827-2840 d. Instructions as to, approved .... . 2841-2861 e. Evidence . . 2862-2883 f. Verdicts held excessive 2884-2911 g. Verdicts held not excessive . .... 2912-2963 h. Punitory damages 2964-2981 i. Inadequate damages 2982-2984 k. Injuries causing death or permanent disability . . 2985-2999 1. Cases against carriers 3000-3009 m. Cases against municipalities 3010-3021 n. Miscellaneous cases . 3022-3037 CHAPTER XV. CONSTITUTIONAL LAW AND CONSTRUCTION OF STATUTES. a. Constitutional law 3038-3049 X>. Construction of statutes , \ 3050-3071 TABLE II. CAUSES OF PERSONAL INJURIES. Acid pulp. Collisions — street cars. Berlick v. A. F. Co. 93 W. 437 Will V. W. S. S. R. 84 W Boerth v. " 87 " 42 288 Alighting from car. Thoresen v. La C. R. 87 " 597 Delam'fr v. M. & P. du C. 24 -f?. 578 V. " 94 " 129 Davis T. C. & N. W. 58 " 646 Little v. S. R. T. Co. 88 " 402 McD'mott V. C. & N. W. 82 " 246 Deuster v. Mil. S. R. 89 " 191 " T. " 85 " 102 Johnson v. S. R. T. Co. 91 " Lockwood v. ^. G. R. Co. 92 " Flaherty v. Harrison 98 " 233 97 Arm injured. 559 Spencer v. M. & P. du C. 29 W 580 Cawley v. Xia C. R. 101 " 145 McDo'gall V. A. F. Co. 97 " 382 Collision — boat and bridge. Baggage. Castello V. Landwehr 28 W 522 Gleason v. G. T. Co. 32 W. 85 Collision — vessels. Blast. Karasich v. Hasbrouck 28 W 569 McMahon v. Ida M. Co. 95 W. 308 V. 101 " 102 Collision — hand car. Dahl V. 111. S. Co. 190 " 431 Gnmz V. C. M. & St.P. 62 W Hinz T. C. B. & N. 93 " 672 16 Blowing off steam. Crane v. C. M. & St.P 93 W. 487 Collisions on highways. O'Malley v. Dorn 7 W 236 Brake rod. Dressier v. Davis 7 " 527 Smith T. C. M. & St.P 42 W. 520 Neauow v. Uttech 46 " 581 Rood V. Am. Ex. Co. 46 " 639 Broken nut — band saw. Vollner V. Berens 50 " 494 Hysdorf v. G. P. L. Co. 95 W. 622 Bierbach v. Goody. R. Co. 54 " Dwyer v. Am. Ex. Co. 55 " 208 453 Car overturned. Schaefer v. Osterbrink ■ 67 " 495 Rowland v. M. L.S. & W 54 W 226 Heucke v. Mil. C. R. Co. 69 " Dwyer v. Am. Ex. Co. 82 " 401 307 Cattle chute. Luedtke v. Jeffery 89 " 136 Dorsey v. P. & C.C. Co 42 W 583 Hanson v. Anderson 90 " 195 Cattle guards. Collisions on railroads. Stutz V. C. & N. W 69 W 312 Spicer v. C. & N. W. 29 W 583 Kreuziger v. C. & N. "W. 73 ■' 158 Smith V. C. M. & St.P. 42 " Gower V. C. M. & St.P. 45 " 520 182 Clearance post. Cottrill V. C. M. & St.P. 47 " 634 Soidmore v. M. L.S. & W 89 W. 188 Kelley v. C. M. & St.P. 50 " Delie v. C. & N. W. 51 " 381 400 Coasting. Luebke v. C. M. & St.P. 59 " 127 Schultz V. Milwaukee 49 W 254 Nelson v. C. M. & St.P. 60 " 320 CAUSES OF PERSONAL INJURIES. Collisions on railroads, cont Lawson v'. C.St.P.M.&O. 64 Phillips V. C. M. & St.P. 64 Annas v. il. & N. 67 Ewald T. C. & N. W. 70 Lusted V. C. & N. W. 71 Reed v. C. M. & St.P. 71 Tuteur v. C. & N. W. 77 Lessard v. N. P. 81 Waterm'n T. C. & A. 82 Button T. C. M. & St.P. 87 Albrecht v. M. & S. 87 Pier Ean C. M. & St.P. C. M. & St.P. 95 447 475 46 420 391 399 505 189 613 63 105 397 357 69 Collision with animal. Q'ken'bsh v. W. & M. 62 W. 411 V. " 71 " 472 Contagious disease. Kliegel v. Altken 84 W. 148 Coupling Curtis Brabbits Wedgw'd (( Lockw'd Hulehan Whitwam Fowler ■ Kelly Cole Hughes Kruse Baltzer Kennedy McGowan O'Brien Nash Ray Lee cars. V. C. & N. W. 18 V. -C. & N. W. 38 V. C. & N. W. 41 V. " 44 V. C. & N. W. 65 V. G.B.W.&St.P. 58 V. Wis. & M. 58 V. 0. & N. W. 61 V. Abbot 63 V. C. & N. W. 67 V. " 71 V. C. M. & St.P. 79 V. C. M. & St.P. 82 V. C. M. & N. 83 V. " 89 T. L.S.T.&T.R. 87 V. " 93 V. C. & N. W. 91 T. C. & N. W. 91 T. C. & N. W. 92 V. C. M. & St.P. 95 T. L. S. T. & T. 99 V. C.St.P.M.&O 101 W. 312 " 289 " 478 " 44 " 50 " 319 " 608 " 159 " 307 " 272 " 114 " 264 " 568 " 459 " 257 •' 28 " 32 " 147 " 507 " 340 " 327 " 617 " 352 Crossing — killing animals. C.&N.W. V. Goss 17 W. 428 Crossings. Kinney V. Crocker 18 W 74 Langhoff v. M. & P. du C. 19 " 489 LanghofC V. M. & P. du C. 23 " 43 Kavan'gh V. Janesvllle 24 " 618 Butler V. M. & St P. 28 " 487 Duffy V. C. & N. W. 32 " 269 Duffy V. C. & N. W. 34"" 188 Roberts T. C. & N. W. 35 " 679 Horn T. C. & N. W. 38 " 463 Bweu V. C. & N. W. 38 '• 613 Gower V. C. M. & St.P 45 " 182 Crossings, Urbanek v, Kearney v. Eilert v. Johnson v. Regan Bohan Hogan Burns Hoye V. V. V. V. V. " V. Ferguson v. Williams V. Leavitt v. Gunn T. Seefeld v. Winst'nly v. Duame v. Heddleg t. " Y. r. V. V. V. V. T. y. V. Abbot Piper Phillips Winehell Hahn Siegel Hermes Olson Schneider v. Valin V. Lierman v. Plynn v. Ward V. DuUea v. Brunette v. McKin'y v. Haetsch v. Nelson v. Faxley v. Schllngen v. Heath v. Nolan V. MoDerm't v. Stelnhofel v. Groesb'ck v. Lenz T. Schneider v. Douglas V. Vant v. continued. C. M. & St.P. 47- " C. M. & St.P. 47 " G. B. & M. 48 " C. & N. W. 49 " 56 " 64 " C. M. & St.P. 51 " M. L.S. & ■V^^. 58 " 61 "■ C. M. & St.P. 59 " N. C. R. M. 60 " 65 " C. & N. W. 62 " 65 " 67 " Wis. Cent. 63 " C. M. & St.P. 64 " C. & N. W. 64 " Wis. & M. 70 '■ C. M. & St.P. 70 " C. M. & St.P. 72 " C. & N. W. 72 " C. & N. W. 74 '■ 77 " Dwlnnel 74 " C. M. & St.P. 77 " M. & N. 77 " Abbot 77 " C. M. & St.P. 78 " M. & N. 79 " C. & N. W. 80 " C. M. & St.P. 81 " W. C. 81 " M. & N. 82 " C. M. & St.P. 82 " E. R. Co. 83 ■' C.St.P.M.&.O 85 " C. & N. W. 86 " C. & N. W. 86 " C. & N. W. 87 •' C. & N. W. 87 " D. S. S. & A. 88 " C. M. & sip. 89 " C. M. & St.P. 90 ■■ Stewart 90 " M. L.S. & W. 91 '■ C. M. & St.P. 91 ■• C. M. & St.P. 92 " C. M. & St.P. 93 " Whitcomb 96 " C. M. & St.P. 99 " CM. & St.P. 100 " C. & N. W. 101 " 59 144 606 529 273 425 599 30 391 139 541 312 666 243 1 145 1 228 203 216 375 523 239 228 514 247 349 371 396 404 590 41 356 1 286 238 601 173 197 282 304 392 206 186 418 16 38 123 505 310 378 405 363 Crowding person oflf dock. Cun'ghm v. Lyness 22 W. 246 Crushed — car and bank. Stackman v. C. & N. W. 80 W. 428 Crushed — car and lumber. Goft V, C. R. & M. 86 W. 237 CAUSES OF PERSONAL INJURIES. XI " v. " 34 Schilli'gr V. "Verona 85 « V. " 88 " V. " 96 Teegard'n V. Caledonia 50 Thrasher V. Postel 79 Kelley V. Darlington 86 Stephani T. Manitowoe 101 Defective bridge. Corneliug v. Appleton 22 W. 635 Meese v. Fond du Lao 48 " 323 Stilling V. Thorp 54 " 528 Fleming v. Appleton 55 " 90 Wentw'th v. Summit 60 " 281 Hole in. Aoht'hgn V. Watertown 18 W. 331 Strong T. Stevens P't 62 " 255 Koenig v. Arcadia 75 " 62 Absence of guard or railing. Houfe V. Fulton 29 W. 296 608 589 317 456 292 503 432 59 Breaking o/. Sutton V. Wauwatosa 29 W. 21 Althouse V. Jamestown 91 " 46 Horse breaMng fh/rough. Jaquish. v. Ithaca 36 W. 108 Oliver v. La Valle 36 " 492 Unsound timber in. Spearb'kr v. Larrabee 64 W. 573 Cpaulding v. Sherman 75 " 77 Opening in railing. Caron v. Green Bay 72 W. 118 Snow and ice. McDonald v. Ashland 78 W. 251 Forked stake near traveled track. Fisher v. Franklin 89 W. 42 Defective clutch. Perrlss v. B. M. Wks. 90 W. 541 Def-ective cross-walk. McMaugh V. Milwaukee 32 W. 200 McKeigue v. Janesville 68 " 50 Absence of guard. Whitney v. Milwaukee 57 W. 639 V. " 65 " 409 Ground uneven and covered with stones. V. Madison 101 W. 312 No cleats in. V. Madison 96 W. 452 Hole in. V. Washburn 87 W. 231 Benson Morrison Duthie Unsound plank. Simonds v. Barahoo Johnson v. Milwaukee 93 W. 40 46 " 568 Defective depot platform. Patten v. C. & N. W. 32 W. 524 Patten v. C. & N. W. 36 " 413 Dowd V. C. M. & St.P. 84 " 105 Adams v. C. & N. W. 89 " 645 Defective dock. Propsom V. Leathem 80 W. 608 Defective edger. Sherman v. M. R. L. Co. 72 W. 122 Defective fence. Jones V. C. & N. W. Defective floor. Herold v. Pfister Defective highways. Dreher v. Fitchburg Davis V. Farmlngtou Otis V. Janesville Suseng'th v. Rantoul Mellor V. Utica Fitzg'rld V. Weston Dorsey v. Racine Drink'wn v. Bau Claire Duthie V. Washburn Keller v. Oilman 49 W. 352 92 W. 417 22 W. 675 42 " 425 47 48 48 52 60 83 88 93 422 344 457 354 292 428 597 'Wash-outs. Seward v. Milford 21 W. 485 Jackson v. Belleview 30 " 250 Hart V. Red Cedar 63 " 634 Wieting v. Millston 77 " 523 Stone or stump in. Nicks Ward Cremer Hunt Matthews Cartright Phillips Bron Hinkley McFarl'n Doan Strieker Boltz V. Marshall 24 W. 139 v. Jefferson 24 " 342 V. Portland 36 " 92 V. Winfleld 36 " 154 V. Baraboo 39 " 674 V. Belmont 58 " 370 V. Willow 70 " 6 Robinson v. Waupaca 77 " 544 Salladay v. Dodgeville 85, " 318 V. Stevens P't 85 " 379 V. Rosendale 95 " 271 V. Sullivan 99 " 301 V. Willow Sp. 101 " 112 V. Reedsburg 101 " 457 V. Sullivan 101 " 608 Hole or excavation in. Alexand'r v. Oshkosh Chappell V. Oregon Hammo'd v. Mukwa Jennings v. Albion Luedke v. Mukwa Rhynes v. Menasha 35 33 W. 277 36 " 145 40 90 90 97 57 523 xu CAUSES OF PERSONAL INJURIES. Defective DitcJi, Davis V, Baker v. Bailey Golds w'y Grundy Slivitski Donoliue Keller highways, cont. rut or gutter in. Fulton 52 W. 657 . Madison 56 " 374 62 . Spring Lake 61 . Linden 75 . Janesville 84 Wien Warren Oilman 95 96 137 227 24 574 460 367 445 Embankments — absence of guards or railing. V. Fox Lake ' 33 W. 438 Hawes M'ntg'my Green Prideaux Klatt Fopper Parish Olson Welsh Stephani Coats Bodah V. Scott 34 V. Bridge Creek 38 V. Mineral Pt. V. Milwaukee V. Wheatland V. Eden V. Chippewa F, V. Argyle V. Manitowoc V. V. Stanton V. Deer Creek 43 53 59 62 71 '85 89 101 90 99 338 449 513 196 623 272 558 307 467 59 130 509 Deviating from traveled track — ob- structions near. Shaddock v. Clifton 22- W. 114 Wheeler v. Westport 30 " 392 Kelley v. Fond du Lao 31 " 179 Seymer v. Lake 66 " 651 Goeltz V. Ashland 75 " 642 Welsh V. Argyle 89 " 649 Larson v. Bau Claire 92 " 86 Raised car track. Kittrldge v. Milwaukee 26 W. 46 Schaefer v. Fond du Lac 99 " 333 Snow drifts. McCabe v. Hammond 34 W. 590 Bogie V. Waupun 75 " 1 Vass T. Waukesha 90 " 337 lee or snow. Kenw'ty v. Ironton 41 W. 647 Paulson V. Pelican 79 " 445 Water break. Draper v. Irrntcn 42 W. 696 Griffln v. Willow 43 " 509 Gr'ndw'tr v. Washington 92 '" 56 Burns Wylie Log in. V. Elba V. Wausau 32 W. 605 48 " 506 Blarth, gravel or biiilding materials Hundh'sn v. Bond 35 W. 29 Hincks V. Milwaukee 46 " 559 Raymond v. Sheboygan 70 " 318 V. " 76 " 335 Defective highways, cont. Eaith, gravel or building materials. Adams v. Oshkosh 71 " 49 Weber v. Greenfield 74 " 234 Raymond v. Keseberg 84 " 302 S. C. 91 " 191 S. C. 98 " 317 Eole or unsound plank in culvert. James V. Portage 48 W 677 Page V. Sumpter 53 " 652 Brennan V. Friendship 67 " 223 Wall V. Highland 72 " 435 Riimrill V. Delafleld 82 ■• 184 Topping V. St. Lawrence 86 " 526 Extraordinary freshet — overflow. Hopkins v. Rush River 70 W. 10 Jung V. Stevens Pt. 74 " 547 Wiltse v. Tilden 77 " 152 Objects frightening horses. Bloor V. Delafleld 69 W. 27S Hughes Cairncross V. Fond du Lac V. Pewaukee 73 " 78 " 380 66 Ritger Loberg Laird V. V. Milwaukee V. Amherst V. Otsego 86 " 87 " 90 " 181 634 25 Sowle Hayrack in. V. Tomah 81 W 349 Bope stretched across. Kollock V. Madison 84 W. 458 Ditch alongside. Hein v. Fairchild 87 W. 258 Defective brake-rod. Cowan V. C. M. & St.P. 80 W. 284 Defective pinch bar. Holt V. C. M. & St.P. 94 W. 596 Defective ladder. Corcoran v. M. G. L. Co. 81 W. 191 Borden v. D. R. M. Co. 98 " 407 Badger v. J. C. M. 95 " 599 Carey v. C. & N. W. 67 " 608 Defective power shovel. Radmann v. C. M. & St.P. 78 W. 22 Defective scaffold or staging. Behm V. Armour 58 W 1 Kaspari v. Marsh 74 " 562 Goltz V. M. L.S. & W 76 " 136 Blazinski V. Perkins 77 " 9 Petfer V. Cutler 83 " 281 Stutz V. Armour 84 " 62S Bright V. B. & R. Co. 88 " 299 Cadden V. Am. S. B. Co 88 " 40» Stanwlck V. B.-R. Co. 93 " 430 CAUSES OF PERSONAL INJURIES. Xlll Defective sidewalk. Benedict v. Fond du Lac 44 Kusterer V. Beaver Dam 52 Benware V. Pine Valley 53 Shanahan V. Madison 57 Wright V. Ft. Howard 60 Watson V. Appleton 62 Plum V. Fond du Lac 51 Krueger V. Merrill 66 Bridge V. Oshkosh 67 " V. " 71 Henker V. Fond du Lac 71 Vogel V. Antigo 81 Koch V. Ashland 83 Berry T. Wauwatosa 87 Van Loan V. Lake Mills 88 Pepp'rc'n V. Bl. River F. 89 McKibben V. Amory 89 Sommers V. Marshfield 90 Tebo V. Augusta 90 Selleck V. Tallman 93 Collins V. Janesville 99 Selleck V. Janesville 100 Loose plarik. Goodn'gh V. Oshkosh 24 " V. ■' 28 Weis'nb'g V. Appleton 26 Ripon V Bittel 30 Colby V. Beaver Dam 34 Studley V. Oshkosh 45 Luck V Ripon 52 Sullivan V Oshkosh 55 Hiner V. Fond du Lac 71 Barney. V Hartford 73 Hurd V. Milton 82 Barrett V Hammond 87 Lyman V Green Bay 91 O'Brien V La Crosse 99 W. 495 " 146 " 527 " 276 " ll9 " 267 " 393 " 28 " 195 " 363 '■ 616 " 642 " 361 " 401 " 430 " 38 " 607 " 59 " 405 '■ 246 " 464 " 157 W. 549 " 300 " 56 " 614 " 285 " 380 " 196 ~" 508 " 74 " 95 " 402 " 654 " 488 " 421 Amos Unsound planks. V. Fond du Lac 46 W. 695 McLimans v. Lancaster 57 " 297 V. " 63 " 596 V. " 65 " 240 Shaw V. Sun Prairie 74 " 105 Moore v. Plattevllle 78 " 644 Vn Frohn v. Ft. Howard 88 " 570 Toutloff v. Green Bay 91 " 490 Defective sidewalk, cont. Ch'mbrln v. Oshkosh 84 " 289 West y. Bau Claire 89 " 31 Crltes V. N. Richmond 98 " 55 Ice find snoic. Cook V. Milwaukee 24 W 270 " V. " 27 " 191 Hoyt V. Hudson 41 " 105 Hill V. Fond du Lac 56 " 242 Gr'ssnb'h V. Milwaukee 65 " 51 McCra'kn V. Markesan 76 " 499 Richards V. Oshkosh 81 " 2^6 Koch V. Ashland 83 •• 361 Hausman V. Madison 85 " 187 Cumiskey V. Kenosha 87 " 286 Cooper V. Waterloo 88 " 433 " V. " 98 " 424 West V. Bau Claire 89 '■' 31 Dolan V. Milwaukee 89 " 497 Fife V. Oshkosh 89 " 540 Beaton V. Milwaukee 97 '■ 416 Salzer V, Milwaukee 97 " 471 Kenyon V. Mondovi 98 " 50 Hyer V. Janesville 101 " 371 Open hatchways — basement stair- ways. Barstow V. Berlin 34 W 357 Fitzgerald v. Berlin 51 " 81 <( V. " 1 64 ■' 203 Papworth V. Milwaukee 64 " 389 Everman V. Menomonie 81 " 624 McClure V. Sparta Paint on. 84 •• 269 Morton V Smith Mild on. 48 W 265 Laue V. Madison 86 W .453 Upturned rail. Pittinger v. Hamilton 85 W. 356 Raised plank in. | Reed v. Madison 83 W. 171 V. " -85 " '567 , Absence of guards or railing. McNam'a v. ClintonvlUe 62 W. 207 Bishop V. Centralia 49 " 669 Hole in. Cronin v. Delavan 50 " 375 Cuthbert V. Appleton 22 W 642 Gutkind v. Blroy 97 " 649 << V. W. 159—85. Fowler v. Farmers' L. & T. Co., 23 W.- 78—386, 3335. Foster v. Fidelity & Casualty Co., 99 W. 447—3046. Freeman v. Engelmann Tr. Co., 36 W. 571—1496, 1717. Galpin v. C. & N. W. E. Co., 19 W. 604—38, 460, 3001. Gardiner v. Kellogg, 14 W. 605 — 1521. Gates V. Fleischer, 67 W. 504 — 1266, 1935, 1947, 1950, 1951, 2856. Gates V. N. P. E. Co., 64 W. 64— 334, 1840, 3842, 3029. Gee V. Swain, 12 W. 450—1521. Geitz V. Mil. City E. Co., 72 W. 307—1224. George v. C, M. & St. P. E. Co., 51 W. 603—1397. uibbons v. Wis. V. E. Co., 58 W. 335—482, 2124. Gibbons v. Wis. V. E. Co., 63 W. 546-3145, 2661, 3030. Gibbons v. Wis. V. E. Co., 66 W. 161—217, 475, 1756. Gibbs V. Larrabee, 33 W. 495— 1365. Gifeord V. Hardell, 88 W. 538— 1289, 1392, 1293. Gill V. Homrighausen, 79 W. 634 —106, 1176. Gillen v. M., St. P. & S. S. M. K. Co., 91 W. 633—2889, 2910. Gilluly V. Madison, 63 W. 518— 839, 840, 2510. TABLE OF CASES. XXV Gilmore v. C, M. & St. P. K. Co., 90 W. 102—234-1. Gleason V. Goodrich Tr. Co., 32 W. 85—567, 569, 570, 571, 572, 57,-!, 574, 575, 607, 2763. Goddard v. C. & N. W. K. Co., 54 W. 548—378. Goeltz V. Ashland, 75 W. 642— 894. Gofe V. Chip. R. & Men. K. Co., 86 W. 237—983, 983a, 1164, 2396. Goldstein v. C, M. & St. P. K. Co., 46 W. 404—94, 119, 1486. Goidworthy v. Linden, 75 W. 24 —744, 749, 1677, 1678, 2517, 2532. Goltz V. M., L. S. & W. E. Co., 76 W. 136—2463, 2760. Gonring- v. C, M. & St. P. E. Co., 78 W. 16—1821. Goodno V. Oshkosh, 28 W. 300— 1283, 1776, 2886, 2902, 2995, 3021. Goodnough v. Oshkosh, 24 W. 549—733, 735. Gores v. Day, 99 W. 276—37. Gores v. Grafe, 77 W. 174 — 1269, 2769, 2836. Gorr V. Mitelstaedt, 96 W. 296— 1387, 1388. Gower v. C, M. & St. P. E. Co., 45 W. 182—2324. Grange v. Eeigh, 93 W. 552—1290. Grasse v. M., L. S. & W. E. Co., 36 W. 582—349, 350, 2328, 2795 iGreen v. Ashland Water Co., 101 ■ W. 258—1316, 1317, 1318, 1319, 1320, 1967, 1968, 2063, 2078, 2088. Green v. Bridge Creek, 38 W. 449 —868, 869, 969. Greenberg v. Whitcomb L. Co., 90 W. 225—1158, 1413, 1554. Greenman v. C. & N. W. E. Co., 100 W. 188—1483, 1484. Griem t. Fidelity & C. Co., 99 W. 530—1855, -1856. Griiifin v. Willow, 43 W. 509—16, 1272, 1990. Grimm v. Washburn, 100 W. 229 —211, 765, 1498, 1743. Grisim v. Mil. St. E. Co., 84 W. 19—2076. Griswold v. C. & N. W. E. Co., 64 W. 652—304. Groesbeck v. C, M. & St. P. E. Co., 93 W. 505—146. Grosse v. C. & N. W. E. Co., 91 W. 483—387, 389. Grossenbach v. Milwaukee, 65 W. 31—783, 787, 2135. Groundwater v. Washington, 92 W. 56—677, 2206, 2554, 2614, 2834. Grundy v. Janesville, 84 W. 574 — ■909,. 1781, 1835* 2203, 2204, 2205. Guin^rd v. Knapp, Stout & C. Co., 90 W. 123—53, 1177, 2763. Guniard v. Knapp, Stout & C. Co., 95 W. 482—1011, 1174, 2715, 2773, 2840. Gumz V. C, St. P. & M. E. Co., 52 W. 672—39, 314, 446, 2593. Gunn V. Wis. & Minn. E. Co., 70 W. 203—160. Gutkind v. Elroy, 97 W. 649— 183, 1783, 1869. Haas T. C. & N. W. E. Co., 41 W. 44—510, 2397, 2398. Hackett v. W. U. Tel. Co., 80 W. 187—1248, 1631. Haetsch v. C. & N. W. E. Co., ?7 W. 304—33, 165. Hahn v. C, M. & St. P. E. Co., 78 W. 396—131, 2393. Haley v. Jump E. L. Co.-, 81 W. 412—1853, 3132, 3353, 3477, 2760. Haley v. Western T. Co., 76 W. 344—1136, 1403, 1598. Hall V. Fond du Lac, 43 W. 374^ 730, 1748, 3537, 3929. Hammond v. Mukwa, 40 W. 35 — ,173, 932, 932, 1888, 3551, 3553, 3921. Hansen v. C, M. & St. P. E. Co., 83 W. 631—163. Hanson v. Anderson, 90 W. 195 — 1443, 1541, 1543. Hardy v. Mil., St. E. Co., 89 W. 183-3000, 3748, 3751,3831. Harp V. Baraboo, 101 W. 368 — 832, 833, 834; ■ Harper v. Milwaukee, 30 W. 365 —750, 851, 949, 950, 954, 955, 956, 957, 1431, 1435, 1775, 3068. Harris v. Cameron, 81 W. 239— 9, 11, 1378. Hart V. Eed Cedar, 63 W. 634— 203, 936, 959, 2434, 3438. » Hart V. West Side E. Co!, 86 W. 483—33, 1154, 3354, 2480, 3494. Hartford v. N. P. E. Co., 91 W. 374—1114, 1193. Hartstein v. W. U. Tel. Co., 89 . W. 531—2388. Hartwig v. C. & N. W. E. Co., 49 W. 358—360, 361, 1575, 1870, 3657. Hausman v. Madison, 85 W. 187 —193, 784. XXVI TABLE OF CASES. Hawes v. Fox Lake, 33 W. 438— 852, 971. Hayes v.Oshkosh, 33 W. 314— 931, 943. Hazen v. West Sup. L. Co., 91 W. 208—1073. Heath v. Stewart, 90 W. 418—81, 133, 396; 3919. Heddles v. C. & N. W. K. Co., 74 W. 339—401, 2273, 3352, 3457, 3694, 2698, 3839, 2889, 2898. Heddles v. C. & N. W. R. Co., 77 W. 338—1599, 1891, 3018, 2060, 3061, 3334, 2312, 3688, 2857, 2913. Heiman v. W. U. Tel. Co., 57 W. 563-3036. Hein v. FaircMld, 87 W. 258— 711, 712a, 742, 916, 976, 1779. Heiae v. C. & N. W. E. Co., 58 W. 535—1107, 1137. Heller v. Abbot, 79 W. 409—373, 1668, 1761. Hemmingway; v. C, M. & St. P. K. Co., 67 W. 668—307. Hemmingway v. C, M. & St. P. R. Co., 72 W. 43—229, 373, 1933, 3689, 3704, 2733. Henker v. Fond du Lac, 71 W. 616—3039. Hennesy v. C. & N. W. E. Co., 99 W. 109—245, 347, 357, 435, 436, 1096, 3466, 2468, 2507, 2682, 2735. Hermann v. Goodrich, 21 W. 536 —556, 558. Hermes v. C. & N. W. R. Co., 80 W. 590—1911, 1921, 1966. Herold v. Pfister, 93 W. 417— 1081, 1085. Heucke v. Mil. City R. Co., 69 W. 401-1325, 1584, 1585, 1610, 2753, 2926. Hibbard v. C, St. P., M. & O. R. Co., 96 W. 443—1153. Hibbard v. W. U. Tel. Co., 33 W. 558—1243, 1774, 3033. Hickey v. C, M. & St. P. R. Co., 64 W. 649—3371. Hill V. Pond du Lac. 56 W. 343— 18, 657, 664, 780, 787, 790, 1818, 3333, 2327, 3583. Hinckley v. C, M. & St. P. R. Co., 38 W. 194—347, 1638, 3971. Hincks V. Milwaukee, 46 W. .559 —688, 696. Hiner v. Fond du Lac, 71 W. 74 — 685, 689, 1533, 1652, 2337. Hinkley v. Eosendale, 95 W. 271 —918, 3519. Hinton v. C. C. R. Co., 65 W. 323 —1613, 1614, 1759, 3017, 2019, 2023, 2037, 2164, 2270, 2286, 2394, 2493, 2637, 2742, 2923. Hinz V. C, B. & N. R. Co., 93 W. 16—1055. Hobbs & Stauer, 62 W. 108—1031, 1032. Hofeman v. C, M. & St. P. R. Co., 86 W. 471—1699, 1700. Hogan V. C, M. & St. P. R. Co., 59 W. 139—5, 535, 1639, 2451. Holmes v. Fond du Lac, 42 W. 382—59, 1560, 1889, 2853. Holt V. C, M. & St. P. R. Co., 94 W. 596—1020. Holum V. C, M. & St. P. R. Co., 80 W. 399—226, 333, 1574. Hooker v. C, M. & St. P. R; Co., 76 W. 543—511, 1679, 1920, 2333. Hooker v. Newton, 24 W. 293 — 1383, 2968. Hooper v. C. & N. W. R. Co., 37 W, 81—559, 583, 642, 643, 1552, 2390. Hopkins v. Rush River, 70 W. 10 —1653, 2439, 3616, 3010. Hoppe V. C, M. & St. P. R. Co., 61 W. 357—373, 501, 1709, 1716, 1937, 3348, 3356, 2358, 3379, 3708, 3955. Horn T. C. & N. W. R. Co., 38 W. 463—505, 506, 507, 1563, 1796. Hoth V. Peters, 55 W. 405—112, 1034, 1396, 1509. Houfe V. Fulton, 39 W. 296—77, 110, 204, 852, 892, 968, 980, 3336. Houfe V. Pulton, 34 W. 608—857, 908, 965,' 3931. Howland v. M., L. S. & W. R. Co., 54 W. 226—1068. Hoye V. C. & N. W. R. Co., 62 W. 666—2126, 2330, 3332. Hoye V. C. & N. W. R. Co., 65 W. 243—1714, 1739. Hoye V. C. & N. W. R. Co., 67 W. 1—408, 430, 3139. Hoyt V. Hudson, 37 W. 656—831, 836, 838. Hoyt V. Hudson, 41 "W. 105—95, 3319, 3612. Hubbell V. Viroqua, 67 W. 343— 896, 946, 947, 953, 953. Huber v. La Crosse City R. Co., 93 W. 636—51, 53, 53, 66, 1222. Hughes V. C, M. & St. P. R. Co., 79 W. 264—2728. Hughes V. Fond du Lac, 73 W. 380—681, 747, 763, 1414. Hulehan v. G. B. W. & St. P. B- Co., 58 W. 319—1406. TABLE OF CASES. XXVU Hulehan v. G. B. W. & St. P. E. Co., 68 W. 520—999, 1000, 1126, 1628, 2849. Hundhausen v. Bond, 36 W. 29 — 844, 845, 846, 914, 1769, 2776. Hunt V. Winfield, 36 W. 154—937. Hunter v. C, St. P., M. & O. E. Co., 99 W. 613—362, 426, 448, 2249. Hnrd v. Milton, 82 W. 402—1802, 1932, 2178, 2214. Hustisford F. M. Ins. Co. v. C, M. & St. P. E. Co., 66 W. 58— 1370. Hutchinson v. C. & N. W. E. Co., 41 W. 541—1804. Hyer t. Janesville, 101 W. 371— 785, 2220, 2231. ImhofE V. C. & M. E. Co., 20 W. 344—596, 2520, 2521, 2647. Imhoft V. C. & M. E. Co., 22 W. 682—354, 1519, 2313, 2314. Innes v. Milwaukee, 96 W. 170 — 1037, 2404. Isely V. 111. Cent. E. Co., 88 W. 453—2684, 2685. Jackson v. Bellevieu, 30 W. 250 —972, 973, 979, 1633, 1635, 2332. Jackson v. Wis. Tel. Co., 88 W. 243—65, 1249, 1654, 2300, 2807. Jaeg-er v. C, M. & St. P. E. Co., 75 W. 130—394. fTalie v. Cardinal, 35 W. 118— 1349, 1350, 1351, 1352, 1353, 1354, 1355, 1675, 1754, 1755, 2800, 2801. James v. Portage, 48 W. 677 — 815, 823. Jaquisli v. Ithaca, 36 W. 108 — 668, 751, 862, 1792, 1813, 2057, 2958. Jamek v. Manitowoc C. & D. Co., 97 W. 537—1030, 1163. Jenkins v. C, M. & St. P. E. Co., 41 W. 112—351. Jennings v. Albion, 90 W. 22 — 172, 2035. Jensen v. Hudson S. M. Co., 98 W. 73—1416, 1418. Jenson v. C, St. P., M. & O. E. Co., 86 W. 589—513, 2703, 2827, 2854. Jewell V. C, St. P. & M. E. Co., 54 W. 610—53, 230, 1698, 2365. Jochem v. Eobinson, 66 W. 638 — 1339. Jochem v. Eobinson, 72 W. 199 — 1337, 2102, 2789. Johnson v. Ashland Water Co., 71 W. 553—1182, 1187. Johnson v. Ashland Water Co., 77 W. 51—1123, 1168. Johnson v. C. & N. W. E. Co., 49 W. 529—414. Johnson v. C. & N. W. E. Co., 56 W. 274—227, 303, 401. Johnson v. C. & N. W. E. Co., 64 W. 425—412, 2369, 2874, 2934 2986 Johnson v. Eirst Nat. Bk., 79 W. 414—1064, 1129, 1130, 1155, 1156, 1157, 27;H. Johnson v. Lake Snp. T. & I. Co., 86 W. 64—371, 541, 1576. Johnson v. MilwaukeB, 46 W. 5P3 —805, 823. Johnson v. M. .& St. P. E. Co., 19 W. 137—2241. Johnson v. Sup. E. T Co., 91 W. 233—1219, 2738, 2745, 2752. Jones V. Burtis, 88 W. 478—1445, , 1474, 1518. Jones v. C, M. & St. P. E. Co., 77 W. 585—461. Jones V. C. & N. W. E. Co., 49 W. 352—1666, 1667, 1692, 2237. Jones V. Florence M. Co., 66 W. 268—1169. Jones V. Parrish, 1 P. 494 — 576, 577, 1704. Jones V. S. & E. du L. E. Co., 42 W. 306—236, 237, 462, 1465. Jones V. Sutherland, 91 W. 587 — 987/ 1016. Jucker v. C. & N. W. E. Co., 52 W. 150—58, 526, 2330. Jung V. Stevens Point, 74 W. 547 --201, 657, 658, 2440, 2547. Kalvus V. Abbott, 77 W. 621—421, 2064, 2155, 2361, 2666. Kaples V. Orth, 61 W. 531—17, 23, 1373, 2332. Karasich v. Hasbrouck, 28 W. 569^113, 1806, 1807, 2514, 2792, 2920. Kaspari v. Marsh, 74 W. 562 — 982, 1007, 2986. Hasten v. Interstate Casualty Co., 99 W. 73—1371. Kavanaugh v. Janesvile, 24 W. ' 618—196, 938, 2885. Kearney v. C, M. & St. P. E. Co., 47 W. 144—2392. Keator, J. S. L. Co. v. St. Croix Boom Co., 72 W. 62—1301, , 3040, 3041, 3042. Keenan v. Hayden, 39 W. 558 — 2097, 2770. Kelleher v. M. & N. E. Co., 80 W. 584—137, 264, 313, 984, 2953. Keller v. Oilman, 93 W. 9—1887, 1913, 2883 XXVlll TABLE OF CASES. Keller v. Gilman, 96 W. 445— 1634. Kelly V. Abbot, 63 W. 307—1134. Kelley v. C, M. & St. P. E. Co., 50 W. 381—1467, 1468. Kelley v. C, M. & St. P. R. Co., 53 W. 74—333, 1066, 2378, 2380, 2381, 2450. Kelley v. C. & N. W. E. Co., 60 W. 480—1814. Kelley v. C. & N. W. E. Co., 70 W. 335—1723, 1724, 2408. Kelley v. Darlington, 86 W. 432 —1488. Kelley v. Fond du Lac, 31 W. 179 —191, 878, 879, 888, 892, 903, 975, 1988, 1989, 2567, 2620. Kelley v. Madison, 43 W. 638— 657. Kelley v. Miwaukee, 18 W; 83 — 847, 849, 1470. , Kellogg- V. C. & N. W. E. Co., 26 W. 223—31, 57, 216, 218, 219, 483, 484, 485, 486, 492, 1762, ^528, 2757. Kennedy v. Lake Sup. T. & T. Co., 87 W. 28—249. Kennedy v. Lake Sup. T. & T. Co., 93 W. 32^40, 1054. Ken-worthy v. Ironton, 41 W. 647 —5, 194, 773, 892, 921, 1780, 2568, 2585, 2596. Kenyon v. Mondovi, 98 W. 50 — 188, 2171, 2389, 2619, 2623, 2990. Kerkhof v. Atlas Paper Co., 68 W. 674—53. Kertsehaeke v. Ludwig, 28 W. 430—1286, 2098. King V. Farmington, 90 W. 62 — 1646, 2424. King V. Osbkosh, 75 W. 517—802, 1914, 1915, 2959. Kinney v. Crocker, 18 W. 74 — 408, 1867, 2676, 2842, 2843. Kinyon v. Stanton, 44 W. 479 — 1291, 1296. Kirst V. M., L. S. & W. E. Co., 46 W. 489—32. Kittner v. M. & N. E. Co., 77 W. 1—1686. Kittredge v. Milwaukee, 26 W. 46—859, 910, 934, 1501. Klatt V. N. C. Poster L. Co., 92 W. 622—67, 1056, 1879. Klatt V. N. C. Foster L. Co., 97 W. 641—1734, 2007, 2731, 2734, 2798, 3799. Klatt V. Milwaukee, 53 W. 196 — 710, 880. Klauber v. Am. Ex. Co., 21 W. 21 —1251, 1257, 1358. Kleimenhagen v. C, M. & St. P. E. Co., 65 W. 66—327. Kliefoth V. N. W. Iron Co., 9§ W. 495—1149, 1151, 1395, 1428, 1429. Kliegel v. Aitken, 94 W. 432—990, 1924, 1925, 2043, 2844, 2890. Kliegel v. Weisel & V. Mfg. Co., 87 W. 148, 1113. Klochinski v. Shores Lumber Co., 93 W. 417—990, 991, 993, 1161, 2486. Knowlton v. Mil. City E. Co., 59 W. 278—36, 1917, 2359, 3746, 2747, 2755, 2960. Koch V. Ashland, 83 W. 361—663, 1514. Koch V. Ashland, 88 W. 603— 2515, 2555, 2575. Kneeland v. Gilman, 24 W. 39 — 964. Koenig v. Arcadia, 75 W. 62 — 2608, 2609, 2610, 2611. Kohler v. West Side E. Co., 99 W. 33—1321, 1589, 1591, 2305, 2354, 2495, 2498, 2512, 2803. Kolloek V. Madison, 84 W. 458— 912, 3060. Kraef t v. Mayer, 92 W. 252 — 1057. Kreuziger v. C. & N. W. E. Co., 73 W. 158—53, 70, 1976, 2092, 2246. Kronshage v. C, M. & St. P. E. Co., 40 W. 58';. Kronshage v. C, M. & St. P. E. Co., 45 W. 500—1858, 2678. Krueger v. Bronson, 45 W. 198 — 1272. Krueger v. Merrill, 66 Vf. 28^ 1676, 2157. Kruse v. C, M. & St. P. E. Co., 82 W. 568—1570, 1573, 2247. Kucera v. Merrill Lbr. Co., 91 W. 637—1078, 1918, 2479, 2481, 2829. Kuehn v. Milwaukee, 93 \V. 363— 850, 944, 945. Kuehn v. Wilson, 13 W. 104 — 35, 1478, 1536, 2052, 2516, 2773. Kurtz & H. Ice Co. v. M. & N. E. Co., 84 W. 171 — 480, 494. Kusterer v. Beaver Dam, 52 W. 146—680. Kutchera v. Goodwillie, 93 W. 448—68, 1181. ' La Crosse v. Melrose, 22 W. 438 — 713a. Lagage v. C. & N. W. E. Co., 91 W. 507—348, 439, 993. Lago V. Walsh, 98 W. 348—1389, 1415, 1437, 2173, 2712, 2729, 3736. TABLE OF CASES. XXIX Laird v. Otsego, 90 W. 35—713, 713a, 933, 1435, 3431. Lamb v. C, M. & St. P. E. Co., 101 W. ,138—553, 633, 633. Lang V. Sanger, 76 W. 71—2383. LanghofE v. M. & P. dn C. E. Co., 19 W. 489—3, 409, 500, 3314, 2336, 2327, 2344. Langhoff v. M. & P. du C. E. Co., 23 W. 43—92, 124, 141. Larson v. Eau Claire, 93 W. 86— 1689, 1830, 3202. Larson v. Knapp, Stout & Co., 98 W. 178—1095, 1097. Larson v. Lake Sup. T. & T. Co., 79 W. 301—1732. Larsson v. McClure, 95 W. 533— 1043, 1049. Laude v. C. & N. W. R. Co., 33 W. 640—242, 365, 366, 367, 3055. Lane v. Madison, 86 W. 453—727, 160|r, 1665, 2579. Lawrence v. M., L. S. & W. E. Co., 43 W. 332 — 334, 336, 241, 463. Lawson v. C, St. P., M. & O. E. Co., 64 W. 447—354, 335, 336, 600, 1973, 2128, 2667, 3985, 2986. Leavitt v. C. & N. W. R. Co., 64 W. 328—465. Lee V. C, St. P., M. & 0. E. Co., 101 W. 353—2350, 3251, 2444. Lehmann v.'Farwell, 95 W. iSl — 1864, 1866. Lemke v. C, M. fe Sc. P. E. Co , 39 W. 449—555, 603, 6t(->, 647, , 1718, 1812. Leonard v. Whitcomb, 95 W. 646 I — e52. Lessard v. N. P. E. Co., 81 W. 189 —1163. Lenz V. Whitcomb, 96 W. 310 — 167. Leitch V. C. & N. W. E. Co., 93 W. 79—305, 1757, 3067. ' Liermann v. C, M. & St. P. E. Co., 83 W. 386—3593, 3663, 3837. Little V. Madison, 43 W. 643—903, 931. Little V. Madison, 49 W. 605—904, 941. Little V. Superior E. T. Co., 88 W. 403—3739, 2741, 2744. Lloyd V. Osborne, 92 W. 93—1294, 1295, 1903. • Loberg v. Amherst, 87 W. 634— 905, 934, 935, 961, 3179. Lockwood V. Belle City E. Co., 93 W. 97—37, 279, 1233. Lockwood V. C. & N. W. E. Co., 55 W. 50—246, 335, 336, 513, 618, 3126. Loeser v. C, M. & St. P. E. Co., 94 W, 571—589, 595, '648. Lofdahl V. M., St. P. & S. S. M. E. Co., 88 W. 431—375. Lucas V. M. & St. P. E. Co., 33 W. 41—638, 639, 630, 1763, 3100, 3101, 3159. Luck V. Eipon, 53 W. 196—1543, 1561, 3033, 2193, 3030. Luebke v. Berlin M. Works, 88 W. 443—1080, 1081, 3737. Luebke v. C, M..& St. P. E. Co., 59 W. 137—438, 1067, 1899. Luedke v. Mukwa, 90 W. 57 — 202, 890. Luedtke v^. JefEery, 89 W. 136— 1282, 1625. Lusted V. C. & N. W. E. Co., 71 . W. 391—1623. Lyman v. Green Bay, 91 W. 488 — 2426, 3589. Lynch v. N. P. E.- Co., 84 W. 348 —79, 446, 449. McArthur v. G. B. & M. Canal Co., 34 W. 139—393, 1310, 1311, 1313, 1383, 1517, 3367, 3841. McCabe v. C, St. P., M. & 0. E. Co., 88 W. 531—540. McCabe v. Hammond, 34 W. 590 —754, 755, 770, 771, 3531. McCadden v. Abbot, 92 W. 551— - 365. McCall V. Chamberlain, 13 W. 637 —377, 384, 549. McCandless v. C. & N. W. E. Co., 45 W. 365—334, 3345, 3343. McCandless v. C. & N. W. E. Co., 71 W. 41—1487. McCann v. C., St. P., M. & O. E. Co., 96 W. 664—224. McClarney v. C, M. & St. P. E. Co., 80 W. 277—331, 3049, 2680. McClure v. Sparta, 84 W. 269— 795, 796, 797, 3505, 3556, 3578. McCoy V. Mil. St. E. Co., 83 W. 215—3000,3053, 3475,3743. McCoy V. Mil. St. E. Co., 88 W. 56 —1964, 3473, 3474, 3531, 3749, 3750, 3876, 3935. McCracken v. Markesan, 76 W. 499—185, 2095. McCue Y. Waupun, 96 W. 625— 660, 1565. McDermott v. C. & N. W. E. Co., 83 W. 246—639, 3664. McDermott v. C. & N. W. E. Co., 85 W. 102—8894, 2956. XXX TABLE OF CASES, McDermott v. C, M. & St. P. R. Co., 91 W. 38—134, 538, 1645, 1727. McDonald v. Ashland, 78 W. 251 —729, 739, 764, 874, 3028, 2938. McDonald v. C, M. & St. P. E. Co., 75 W. 131—137, 369, 370. McDonogh v. M. & N., 73 W. 233 —391. McDongall v. AsMand S. P. Co., 97 W. 383—1094, 1578, 3384, 3387. McParlane v. Milwaukee, 51 W. 691—691, 703, 704, 911. McFarlane v. Sullivan, 99 W. 361 —71, 979. McGowan v. C. & N. W. R. Co., 91 W. 147—50, 53, 53, 60, 441, 3041, 3349. McGrath v. Bloomer, 73 W. 39— 14, 794, 2357, 3514. McHugh V. C. & N. W. R. Co., 41 W. 75—1838, 1839, 2911. McHugh V. C. & N. W. R. Co., 41 W. 79—1661, 1736. McKeon v. C, M. & St. P. R. Co., 94 W. 477—331, 1438, 1945, 2006, 2355, 2537, 2674, 2690, 3691, 3834, 3896. McKeig-iie v. janesville, 68 W. 50 —193, 686, 746, 1451, 1835, 1896, 1897, 1913, 1916, 2273. McKibben v. Amory, 89 W. 607 — 700, 701, 703. McKinney v. C. & N. W. R. Co., 87 W. 383—164. McLimans v. Lancaster, 57 W. 397—1663, 1683. McLimans v. Lancaster, 63 W. 596—1549, 1651, 2194, 3195, 2197, 3199, 3356, 2373, 2435, 2576, 2583, 2889, 2901. McLimans v. Lancaster, 65 W. 340—1841. McMahon v. Ida Mining Co., 95 W. 308—989. McMahon v. Ida Mining Co., 101 W. 103—1311, 1213. McMahon v. Eau Claire W. W. Co., 95 W. 640. McMangh v. Milwaukee, 32 W. 200—919, 1404. McNamara v. Clintonville, 62 W. 207—814, 2833, 2854, 2855, 3011. McNarra v. C. & N. W. R. Co., 41 W. 69—1804, 2136, 3036. McQuade v. C. & N. W. R. Co., 68 W. 616—1721. McVoy V. dalces, 91 W. 214—309. Mace V. Reed, 89 W. 440 — 1447, 2094, 2287, 2974, 2975. Maitland v. Gilbert Paper Co., 97 W. 476—1145, 1146, 1150, 1582, 1963, 3170, 3367, 2499, 3500. Malone v. Gerth, 100 W. 166— 2802, 2804. Marshall v. Am. Ex. Co., 7 W. 1— 1809, 2771. Martin v. Am. Ex. Co., 19 W. 356 —1436, 3027, 3038. Martin v. Bishop, 59 W. 417— 1321, 2470. Martin v Stewart, 73 W. 553— 222, 339. Martin v. W. U. R. Co., 23 W. 437 —361, 1556, 3331. Marvin v. C, M. & St. P. R. Co., 79 W. 140—83, 84, 488, 1557. Mason v. C, St. P., M. & O. R, Co., 89 W. 151— 538,' 539. Matthews v. Baraboo, 39 W. 674 —887, 1531. Mathews v. Case, 61 W. 491 — 1185. Mayer v. Mil. St. R. Co., 90 W. 523—1609, 3166, 3393, 2493. Meese v. Pond du Lac, 48 W. 333 —1564, 1569, 3491, 2897. Meibus v. Dodge, 38 W. 300— 1387, 3311, 2964. Megow V. C, M. & St. P. E. Co., 86 W. 466—495, 1644. Meier v. Morgan, 83 W. 389 — 1369, 1595, 3381, 3783. Meier v. Paulus, 70 W. 165—1364, 1860. Mellor V. Utica, 48 W. 457—1993. Menasha v. Steam Tug Portage, 36 W. 535—967. Meracle v. Down, 64 W. 323 — 395, 3096, 3167, 3303, 3306, 2785, 2946. Men. R. S. & D. Co. v. M. & N. R. Co., 91 W. 447 — 476, 477, 478, 1893, 1895, 2151, 2447, 2449. Merchants' S. Bank v. State Bank of Phillips, 94 W. 444— 1298, 1399, 1300, 3032. Meyer v. C. & N. W. R. Co., 34 W. 566—563. M. & Le C. L. Co. v. C, St. P., M. & 0. R. Co., 94 W. 336—390, 3101, 3333, 3336, 2462. Miller V. C, M. & St. P. R. Co., 68 W. 184—2340. Miller v. Sherry, 65 W. 129—1303. Miller v. Utica, 48 W. 457. Mills v. C, M. & St. P. R. Co., 76 W. 422—472, 473, 3030. Milwaukee v. Davis, 6 W. 377 — 877, 3581, 3584. Milwaukee v. M. & B. R. Co., 7 W. 85. TABLE OF CASES. XXXI M. & C. R. Co. V. Hunter, 11 W. 160-^91, 423, 1626, 1878. Mil. Gas Lt. Co. v. Schooner r "Gamecock," 23 W. 144—1308. Mil. . S. & W. E. Co., 91 W. 16—166, 301, 3061, 3063. N. H. B. & L. Ass'n v. Childs, 82 W. 460—1313, 1456. N. P. E. Co. V. McMullen, 86 W. 501—1647, 1648. Oberndorfer v. Pabst, 100 W. 505 —1361, 1363, 3087. O'Brien v. C. & N. W. E. Co., 92 W. 340—2009. O'Brien v. La Crosse, 99 W. 431— 1843, 1844. O'Connor v. C. & N. W. E. Co., 92 W. 612—1523, 1524. Oeflein v. Z,autcke, 92 W. 176— 1331. Ohlson V. Pierce, 55 W. 205—1346, 1347. Ohlweiler v.Lohmann, 82 W. 198 —1276, 2382. - Ohlweiler v. Lohmann, 88 W. 75 —2350, 2774, 2779. Oleson V. Brown, 41 W. 413—59. Oleson V. Tolford, 37 W. 337— 1688, 1961, 1981, 1982. , Oliver v. La Valle, 36 W. 592— 59, 2851. Olson V. C, M. & St. P. R. Co., 81 W. 41—142, 318. Olson V. Chippewa Falls, 71 W. 558—75. Olwell V. Mil. St. E. Co., 92 W. 330—1799, 2482, 2506. O'Malley v. Dom, 7 W. 236—2767. Orth V. Milwaukee, 59 W. 336— 1462. Orttel V. C, M. & St. P. E. Co., 89 W. 127—2416, 2417. xxxu TABLE OF CASES. Osborne v. Lehigh V. Coal Co., 97 W. -37— 1087. Otis V. Janesville, 47 W. 423—215, 2553. Pag-e V. Sumpter, 53 "W. 652— \\\\\\\ 1767, 1784, 2812, 3019. Paine v. E. R. Co., 91 W. 340— 225, 431, 433, 2065, 2066. Palmer v. Hawes, 73 W. 46—1314, 1315. Papworth v. Milwaukee, 64 W. 389—690, 800, 801, 820. Parish v. Eden, 62 W. 272—175, 207, 676, 682, 740, 756, 1457, 2540, 2563. Patry V. C, St. P., M. & O. E. Co., 77 W. 218—622, 3626, 2967, 2974. Patry v., C, St. P., M. & O. K. Co.; 82 W. 408—331, 625, 1977, 2048, 2050, 2452, 2455, 2503. Patten v. C. & N. W. R. Co., 32" W. 524—8, 78, 1746, 2658, 2907. Patten v. C. & N. W. E. Co., 36 W. 413—2893, 2950. Paule V. Florence M. Co., 80 W. 350—1043, 1065. Paulson v. Pelican, 79 W. 445 — 1399, 1434. Peake v. Buell, 90 W. 508—1448, 1513. Pease v. C. & N. W. E. Co., 61 W. 163—86, 1106. Peet V. C. & N. W. E. Co., 30 W. 594—585, 645, 3639, 3007. PefEer v. Cutler; 83 W. 281—1012. Pelitier v. C, St. P., M. & O. E. Co., 88 W. 521—3536, 2633, 2672. Pelton V. Blooming Grove, 3 W. 310—1735. Pennison v. C, M. & St. P. E. Co., 93 W. 344—328, 1846. Peppercorn v. Black Eiver Falls, 89 'Vy. 38—1701, 1702, 2999; Perkins v. Pond du Lac, 34 W. 435—187, 786, 2175. Peschel v. C, M. & St. P. R. Co., 63 W. 338—1115, 1116. Peters v. Steiwart, 72 W. 133—392. Peterson v. D. Shaw L. Co., 93 W. 500-1854. Peterson v. N. P. E. Co., 86 W. 306—340. Peterson v. Sherry Lumber Co., 90 W. 83—23, 1053, 1053. Phettiplace v. N. P. E. Co., 84 W. 412—623, 694, 636, 3962. Phillips T. C, M. & St. P. E. Co., 64 W. 475—356, 496, 497, 1141, 3136. Phillips V. M. & N. E. Co., 77 W. 349—138. Phillips V. Willow, 70 W. 6—2119, 2130, 3313. Phillips V. Wis. St. Ag. Soc, 60 W. 401—3174, 3526, 3809, 2810. Pickett V. Crook, 30 W. 358— 1383, 3965. Pier V. C, M. & St. P. R. Co., -94 W. 357—60, 2051, 2099, 2222, 2459, 2464, 2668, 2673. Pierce v. M. & St. P. R. Co., 23 W. 387—580. Pike V. C, M. & St. P. R. Co., 40 W. 583—564, 565, 566. Piper V. C, M. & St. P. R. Co., 77 W. 347—148, 399, 409, ^99. 2699. Pittenger v. Hamilton, 85 W. 356 —933. Pitzner v. Shinnick, 39 VV. 139— 101, 392, 3339. Pitzner v. Shinnick, 41 W. G76— 396, 1339, 1330, 3291. Plott V. C. & N. W. E. Co., 63 W.' 511—608, 609, 619, 620, 631. Plum V. Fond du Lac, 51 W. 393 —685, 758, 3051. Plumer v. McDonald L. Co., 74 W. 137—1480, 1533. Plunkett V. M., S. S. M. & A. E. Co., 79 W. 222—2234, 2339, 2340, 3696. Pool T. C, M. & St. P. E. Co., 53 W. 657—259, 334, 533. Pool v) C, M. & St. P. E. Co., 56 W. 227-^, 338, 339, 1685, 3375. Portance v. Lehigh V. Coal Co., 101 W. 574—995, 996, 1117, 1580. Porter v. Silver Creek & M. C. Co., 84 W. 418—1144. Potter V. C. & N. W. E. Co., 20 W. 533—1417. Potter V. C. & N. W. E. Co., 21 W. 372—20, 92, 97, 3989. Potter V. C. & N. W. R. Co., 23 W. 615—2870, 2875, 2906. Powell V. Ashlad I. & S. Co., 93 W. 35—115, 285, 1044, 2348. Prahl V. Gerhard, 35 W. 466 — 30,69, 2768. Prideaux v. Mineral Point, 43 W. 513—315, 707, 897, 907, 1927, 3185, 2558, 2612. Pritchard v. La Crosse & M. R. Co., 7 W. 832—450. Promer v. M., L. S. & W. R. Co., 90 W. 215—111, 984, 395, 996, 1027, 1074, 1075. TABLE OF CASES. XXXIU Propsom V. Leathern, 80 W. 608— 1433, 2111, 2112, 2734, 8737, 2787, 2940. Prybilski v. N. W. Coal Co., 98 W. 413—1152, 1166. Quackenbush v. Wis. & Minn. E. Co., 62 W. 411—344, 345, 369. Quackenbush v. Wis. & Minn. R. Co., 71 W. 472—3038. Quaife v. C. & N. W. E. Co., 48 W. 513—1916, 1947, 1999, 2031, 2941. Quinn v. Higgins, 63 W. 664 — 1935, 1952, 1954, 2042, 2514, 2530. Eadman v. C, M.,& St. P. R. Co., 78 W. 22—1040, 1570. Ralph v. C. & N. W. E. Co., 32 W. 177—2023. Randall v. N. W. Tel. Co., 54 W. 140—1396, 1564, 1753, 2133, 2308, 2309. Eansome v. C, St. P. & M. E. Co., 62 W. 178—620. Eay V. Lake Sup. T. & T. Co., 99 W. 617—144, 1587, 1588, 1590, 2469. Raymond v. Keseberg, 84 W. 302 —843, 2409, 2412. Raymond v. Keseberg, 91 W. 191 —776, 2833, 3016. ■ Raymond v. Keseberg, 98 W. 317 —1660, 1706, 1V19, 2383. Raymond v. Sheboygan, 70 W. 318—692, 1568. Raymond v. Sheboygan, 76 W. 335—703, 704. Eead v. Morse, 34 W. 315—21, 470, 1324, 1326, 2757, 2758. Reed v. C, M. & St. P. R. Co., 71 W. 399—1671, 1695, 2142, 2143, 2144. ■ReedV. Madison, 83 W. 171—126, 171, 757, 760, 778, 821. Reed v. Madison, 85 W. 667— 1710, 1873, 1929, 1958, 2366, 2533 Regan v. C, M. & St. P. E. Co., 51 W. 599—1459. Regan v. C, M. & St. P. E. Co., 85 W. 43—136. Eeinke v. Bentley, 90 W. 457— 1205, 2847. Eeynolds v. Graves, 3 W. 416 — 1265, 1559. Eeynolds v. Shanks, 23 W. 307— 2072. Rhyner v. Menasha, 97 W. 523 — 2428, 2566, 2595, 2599. Richards v. Oshkosh, 81 W. 236— 2119, 2120, 2213. Richardson v. C. & N. W. E. Co., 56 W. 347—238. Eichardson v. C. & N. W. E. Co., 58 W. 534—1461, 1534. Eichardson v. C. & N. W. E. Co., 61 W. 596—1479. Eideout v. M., L. S. & W. E. Co., 81 W. 237—1442. Eipon V. Bittel, 30 W. 614—733, 1874, 2090, 2120, 2277, 2996. Eitger v. Milwaukee, 99 W. 190— 215, 974, 978, 979. Roberts v. C. & N. W. R. Co., 35 W. 679— i29, 306, 403, 398, S23, 2961. Eoberts v. Wis. Tel. Co., 77 W. 589-1350, 1516. Eobinson v. Eohr, 73 W. 436 — 913 Eobinson v. Superior E. T. Co., 94 W. 345—1926, 2968, 2974, 3978. Eobinson v. Washburn, 81 W. 404 —1713, 2394. Eobinson v. Waupaca, 77 W. 544 —1994, 2894, 2983, 3984. tlogahn V. Moore M. & F. Co., 79 W. 573—1400. Eohde V. C. & N. W. R. Co., 86 W. 309—1430. Rolke V. C. & N. W. R. Co., 36 W. 537—481. Rood V. Am. Ex. Co., 46 W. 639— 1359. Eooney v. Mil. Chair Co., 65 W. 397—3877. Eoth V. Barrett Mfg. Co., 96 W. gig 2279 Eothe v. M. & St. P. R. Co., 21 W. 356—134, 162, 168, 244, 257. Rottsoll V. Two Rivers Mfg. Co., 96 W. 334—1720. Eudiger v. C, St. P., M. & O. R. Co., 94 W. 191—3053. Rudiger v. C, St. P., M. & 0. E. Co., 101 W. 292—1604, 2012, 2013, 2165, 2443, 2445, 3830, 2904. Rumrill v. Delafield, 82 W. 184— 891. Ryan v. C. & N. W. E. Co., 101 W. 506 — 451, 452, 453. Eyan v. Eoekford Ins. Co., 77 W. 611—2721. Eysdorp v. G. Pankratz L. Co., 95 W. 622. Salladay v. Dodgeville, 85 W. 318 —7, 712a, 726, 1834, 2209, 2210, 2590, 3018. Salzer v. Milwaukee, 97 W. 471 — 198, 789, 2427, 2433. Sawvel V. Bitterlee, 86 W. 420— 1581. XXXIV TABLE OF CASES. Schadewald v. M., L. S. & W. K. Co., 55 W. 569—337, 3838. Schaefer v. Fond du Lac, 99 W. 333—1236. Schaefer v. Osterbrink, 67 W. 495 —1157, 1274, 1375, 1277, 3301, 2765, 3805. Schaller v. C. & N. W. R. Co., 97 W. 31—601, 1533, 1863, 3255, 3356. Schaaer v. Connors, 57 W. 331— 1388. Schiefelbein v. Badger Paper Co., 101 W. 402—1003. ScMffler v. C. & N. W. E. Co., 96 W. 141—276. Schilling v. C, M. & St. P. K. Co., 71 W. 255—163, 356. Schillinger v. Verona, 85 W. 589 —2423, 3435. Sehillinger v. Verona, 88 W. 317 —899, 1608, 1930, 3538. Sehillinger v. Verona, 96 W. 456 —977, 979. Schmidt v. C. & N. W. B. Co., 90 W. 504—509, 602. Schmidt v. Menasha W. W. Co., 92 W. 529—1789. Schmidt v. Menasha W. W. Co., 99 W. 300—1390, 1391 ,3066. 3067. Schmidt v. M. & P. du C. K. Co., 23 W. 186—370, 376, 3917. Schmidt \. Mil. St. E. Co., 89 W. 195-3740, 2835. Schlimgen v. C, M. & St. P. E. Co., 90 W. 186—159, 253. Schmolze v. C, M. & St. P. E. Co., 83 W. 659—87, 149, 150, 161. Schneider v. C, M. & St. P E Co., 99 W. 378—147, 153, 3633! Schneider v. Prov. Life Ins. Co 24 W. 38—1372. Schneider v. Wis. Cent. E. Co. 81 W. 356—1540. Schoenfeld v. Mil. City E. Co., 74 W. 483—163, 277. Schrier v. M., L. S. & W. E. Co., 65 W. 457—1586, 1615, 2054, 2938. Schroeder v. Baraboo, 93 W. 95 —827. Schroth V. Prescott, 63 W. 652— 807, 808, 2617. Schroth y. Prescott, 68 W. 678— 3957. Schuenke v. Pine Eiver, 84 W 669—866, 867, 2211, 3363, 3565. Schultz T. C. & N. W. E. Co., 44 W. 638—446, 1010, 1033, 1071, 1624, 3136, 2593. Schultz V. C. & N. W. E. Co.. 67 W. 616—1002, 1059, 1060, 1119, 3033. Schultz V. C, M. & St. P. E. Co., 40 W. 589—1208. Schultz V. C, M. & St. P. E. Co., 48' W. 375—1197, 2465, 2887, 3924. Schultz V. Milwaukee, 49 W. 354 930, 931, 941, 1409. Schultz V C. C. Thompson L. Co., 91 W. 626—1017, 1018. Scidmore v. M. L. & W. K. Co., 89 W. 188—323, 443. Seaman v. Farmers' L. & T. Co., 15 W. 579—2860. Seefeld v. C, M. & St. P. E. Co., 70 W. 316—116, 153, 163, 529. Seegar v. Ashland, 101 W. 515— 661. Seliger v. Bastian, 66 W. 53 — 1961 Selleck v. Janesville, 100 W. 157 —1861, 1862, 2045, 3304, 2543. Selleck v. Tallman, 93 W. 346— 699. Seward v. Milford, 31 W. 485 — 856, 3586, 3587. Seymer v. Lake, 66 W. 651 — 3093, 3177, 2505. Shaddock v. Clifton, 32 W. 114^ 1880, 1881, 3301. Shanahan v. Madison, 57 W. 376 —834, 1528. Sharp V. Mauston, 93 W. 639 — 656, 678, 679. Shaw V. Sun Prairie, 74 W. 105 —3114, 2115, 3276, 2577, 2624. Sheel V. Appleton, 49 W. 135 — 669, 736, 1460, 3995. Shenners v. West Side E. Co., 74 W. 447—1723. Shenners v. West Side E. Co., 78 W. 383—2410. Sheridan v. Bigelow, 93 W. 426 — 53, 1138. Sherman v. Men. Eiv. L. Co., 72 W. 123—1026. Sherman v. Men. Eiv. L. Co., 77 W. 14—3059, 2413, 2421, 2483, 2484. Shevlin v. Am. Mut. Ace. Assn., 94 W. 80—297. 398. 299, 1906. Showalter v. Fairbanks, M. & Co., 88 W. 376—1043, 1093, 1101, 1103. Shultz v. C, M. & St. P. E. Co., 40 W. 589. Sickler v. La Valle, 65 W. 572 — 1707, 1823. Sieber v. Annunson, 78 W. 679 — 1376, 2030. Siegel v. M. & N. E. Co., 79 W. 404—140. TABLE OF CASES, XXXV Sika V. C. & N. W. E. Co., 21 W. 370—371, 3054. Simmons v. Putnam, 11 W. 193 — S965. Simonds v. Baraboo, 93 W. 40 — 199, 1629, 2103, 2560. Slensby v. Mil. St. E. Co., 95 W. 179—1329, 1602. Sling-er v. Hennemann, 38 W. 504 —1285, 3043, 3044. SlivitsM V. Wien, 93 W. 460— 176, 892. Smalley v. Appleton, 70 W. 340 — 1497, 1975, 2430, 2598, 2863. Smalley v. Appleton, 75 W. 18— 732, 1708, 1885, 1935, 1956, 2572, 2590, 2936. Smith V. Builders' & T. Ex., 91 W. 360—1332, 1333, 1335, 1336, 1357, 1358, 2285, 2775, 2780, 2832. Smith V. C, M. & St. P. E. Co., 42 W. 520—352, 984, 2717. Smith V. C, M. & St. P. E. Co., 91 W. 503—427, 1118, 3059. Smith V. Milwaukee, 18 W. 63 — 822, 825, 826, 848, 1469. Sommers v. Marshfield, 90 W. 59 —657, 694. Sorenson v. Menasha P. & P. Co., 56 W. 338—1904, 2343. Sowle V. Tormah, 81 W. 349—722, 1425. Spaulding v. C. & N. W. E. Co., 30 W. 110—466, 470, 1901, 1&02, 2001, 2651, 3058. Spaulding v. C. & N. W. E. Co., 33 W. 582—467, 470,' 1326, 1745, 1764, 1900. Spaulding v. Sherman, 75 W. 77 —74, 753. Spearbracker v. Larrabee, 64 W. 573—195, 672, 860, 872, 2073, 2114, 2215. Spelman v. Portage, 41 W. 144 — 870. Spencer v. M. & P. du C. E. Co., 17 W. 4^7—1797, 3643. Spicer v. C. & N. W. E. Co., 29 W. 580—1283. 2909. 2966. 2993. Stackman v. C. & N. W. E. Co., 80 W. 438—362, 1170, 2593. Stacy V. Knickerbocker Ice Co., 84 W. 614—1367. Stacy T. M., L. S. & W. E. Co., 72 W. 331—1834, 3022. Stacy T. M., L. S. & W. E. Co., 85 W. 225—479, 1659, 1785. Stanwick v. Butler-Eyan Co., 93 W. 430—1938, 2472, 2487, 2488. Steffen v. C. & N. W. E. Co., 46 W. 259—34, 1309, 2004. Steinhofel v. C, M. & St. P. E. Co., 93 W. 133-118, 158, 1656, 1657, 1658, 1911, 1922, 2026. Steinke v. Diamond Match Co., 87 W. 477—2478, 3490, 3716. Stephani v. Manitowoc, 89 W. 467—745, 875, 1546. Stephani v. Manitowoc, 101 W. 59—663, 665, 769. Stephenson v. Duncan, 73 W. 404 —1063, 1086, 1090, 1091, 1455. Stephenson v. U. S. Ex. Co., 21 W. 405—1361, 2109. Steltz V. Wausau, 88 W. 618^763, 1414. Stetler v. C. & N. W. E. Co., 46 W. 497—99', 545, 546, 820, 1025, 3711. Stetler v. C. & N. W. E. Co., 49 W. 609 — 99, 547, 548, 1520. Stertz V. Stewart, 74 W. 160 — 2147, 2865. Stewart v. Everts, 76 W. 35—1711, 1884, 2226, 2327, 3338. Stewart v. Eipon, 38 W. 584-^59, 76, 781, 2513, 2570, 2750, 2825, 2826, 2852, 2937. Stilling v. Thorp, 54 W. 538—787, 889, 966, 1794, 3089, 3580. Stimson v. M., L. S. & W. E. Co., 75 W. 381—360. Stone V. C, St. P., M. & O. E. Co., 88 W. 98—637, 1946, 3972. Strahlendorf v. Eosenthal, 30 W. 674—1032, 1072, 1310, 1434. StreifE v. Milwaukee, 89 W. 218 — . 948. Strieker v. Eeedsburg, 101 W. 457 —886, 1579, 2208. Strong V. Stevens Point, 62 W. 255—107, 970, 1641, 1886, 1986, 3056, 2569, 2953. Strup V. Edens, 33 W. 432—3266. Stucke V. Mil. & Miss. E. Co., 9 W. 202—40, 41, 43, 383, 456, 3669, 2671. Studley v. Qshkosh, 45 W. 380— 684, 1433. Stuettgen V. Wis. Cent. Co., 80 W. 498—319, 413, 1898, 2903. Stutz V. Armour, 84 W. 633—1112. Stutz V. C. & N. W. E. Co., 69 W. 313—1669, 1670. Stutz V. C. & N. W. E. Co., 73 W. 147—3030, 2845, 3861, 3880, 3895. Summerfield v. W. U. Tel. Co., 87 W. 1—3034. Sullivan v. Oshkosh, 55 W. 508— 683, 1987, 2187, 2188 Susenguth v. Eantoul, 48 W. 334. Suter V. Park & Nelson Co., 90 W. 118—2761, 3794. XXXVl TABLE OF CASES. Sutton V. C, St. P., M. & O. R. Co., 98 W. 157—405, 406, 508, 531, 1741. Sutton V. Wauwatosa, 29 W. 31r- 5, 36, 45, 46, 89,' 208, 212, 2315. Swarthout v. C. & N. W. R. Co., 49 W. 625— 1547,- 1553. Sweet V. Ohio Coal Co., 78 W. 127 —1063, 1090, 1091. Tebo T. Augusta, 90 W. 405— 1913, 1933, 3044, 2047, 3858. Teegarden v. Caledonia, 50 W. 392—738, 2375, 3393. Thayer v. Jarvis, 44 W. 388— 1378, 1379, 1433. Thompson v. E. P. Allis Co., 89 AV. 533-1015, 3720, 3052. Thompson v. Herrmann, 47 W. 602—1028, 1185, 1186. Thompson v. Johnston Bros. Co., 86 W. 576—1039, 1773, 1939, 2807, 2871, 2944. Thompson v. W. U. Tel. Co., 64 W. 531—1245, 1246. Thomas, B. & W. Co. v. W., St. L. & P. E. Co., 62. W. 642— 3003, 3003. Thoresen v. La Crosse City E. Co., 87 W. 597—278, 1316, 1231, 2325, 2326, 2337. Thoresen v. La Crosse City E. Co., 94 W. 129—282, 2878. Thrasher v. Postel, 79 W. 503— 1637, 1683, 1803, 2081, 2808. TolmajU v. Abbot, 78 W. 192—561, 2253, 2354. Toner v. C, M. & St. P. E. Co., 69 W. 188—1005, 1130. Topping V. St. Lawrence, 86 W. 536-1531, 3997. Townley v. C, M. & St. P. E. Cp., 53 W. 626—2, 121, 302, 401, 541, 1640, 2123, 2126. Tourville v. Nemadji Boom Co., 70 W. 81—1731, 1786, 3035. Toutloff V. Green Bay, 91 W. 490 —698. Treleven v. N. P. E. Co., 89 W. 598—644, 1831. Tmax V. C, St. P., M. & O. E. Co., 83 W. 547—542. Turnquist v. Hayes, 101 W. 523 — 1419. Turnquist.v. Hayes, 101 W. 538— 1430. Tuteur v. C. & N. W. E. Co., 77 W. 505—3986, 3987. Urbanek v. C, M. & St. P. E. Co., 47 W. 59—1596, 1760, 1790, 1791, 2121. Valin V. M. & N. E. Co., 82 W. 1 —18, 23, 41, 104, 130, 149, 322, 416, 1712, 3337. Van ' den Heuvel v. National Furnace Co., 84 W. 636— 1139, 1140. Van Fraehen v. Ft. Howard, 88 W. 570—659, 734. Van Loan v. Lake Mills, 88 W. 430—733. Vant V. C. & N. W. E. Co., 101 W. 363—617. Vass V. Waukesha, 90 W. 337— 772, 1782, 2504, 2632. Veerhusen v. C. & N. W. E. Co., 53 W. 689—457, 458, 459, 1971, 2269. Vogel V. Aritigo, 81 W. 643—657, 659, 666, 667. Vollner v. Berens, 50 W. 494 — 1280. Vorbrich v. Gender, P. Mfg. Co., 96 W. 277—1100. Vosburg V. Putney, 78 W. 84 — 1960, 2289. Wall V. Highland, 73 W. 435— 712a, 716, 3514, 2548, 2621. Walsh V. C, M. & St. P. E. Co., 42 W. 33—637, 638, 3838. Ward V. C, St. P., M. the testimony, after their connection and relatiop to the matter in issue have been traced, and their weight and force considered. In such cases, if unbiased men would differ as to such inferences, then they cannot be made without the intervention of a jury, although all the witnesses agree in their PROXIMATE CAUSE. § 1 9^2 3 statements, or there be but one statement which is consistent throughout." Per Cassoday, J., in Hill v. City of Fond du Lac, 56 Wis., 242, cited and approved in Nelson v. Chicago, M. & St. P. R. Co., 60 Wis., S30; Valin v. Milwaukee & N. R. Co., 82 Wis. 1. §19. Same — same. Where negligence is not a necessary inference from the facts in evideiice, the question should not be taken from the jury. Neanow v. Uttech, 46 Wis., 581. §20. Ordinary care in respect to property. What constitutes ordinary care in respect to property de- pends upon the character, value and situation of the property in question; the question in each case being what care would usually be exercised by men of ordinary prudence, in respect to property of the same kind, and similarly situated. Ward v. Milwaukee & St. P. R. Co., 29 Wis., 144; Dreher v. Fitchburg, 22 Wis., 675, as to degrees of negligence, approved: Potter v. Chicago & N. W. R. Co.; 21 Wis., 372, modified and explained. §21. Reasonable or ordinary care. Reasonable or ordinary care is a relative term, and denotes the degree of caution which would be exercised by a person of ordinary prudence under the particular circumstances of the case. Read v. Morse, 34 Wis., 315. §22. When verdict will be directed. sX is only when the inference of negligence, or the absence of it, from the undisputed facts proved is inevitable that the court will direct a verdict. In all cases in which such infer- ence is in doubt, giving to the testimony the construction most favorable to the party charged' therewith, the question of neg- ligence is for the jury. Nelson v. Chicago, M. & St. P. R. Co., 60 Wis., 330. §23. Same. Negligence is an inference to be drawn from the facts and circumstances disclosed by the evidence, and when the facts and circumstances are not ambiguous, apd there is no room for two honest and apparently reasonable conclusions, then the judge may take the case from the jury. But in order to justify this course, the evidence must be clear and decisive. §24-27 ACTIONABLE NEGLIGENCE. Peterson v. Sherry Lumber Company, 90 Wis., 83; Kaples v. Orth, 61 Wis., 531, and cases cited; Valin v. Milwaukee & N. R. Co., 82 Wis., 1; Hart v. West Side R. Co., 86 Wis., 483. §24. When error to submit question to jury. In an action for negligence, where, upon the plaintiff's evi- dence, the accident appeared unaccountaible, and the' defend- ant's evidence, so far as it accounted therefor, showed that it occurred from an occult risk incident to the employment, or tl.at, if there were negligence, it was that of the plaintiff, it was error to submit the question of defendant's negligence to the jury. Steffen v. Chicago & N. W. R. Co., 46 Wis., 359. §25. Degrees of negligence. Slight, ordinary and gross, referred to by Dixon, C. J., in Chicago & N. W. R. Co. v. Goss, 17 Wis., 438. §26. Same. Negligence has long' been divided into three degrees, slight, ordmary and gross. This division has sometimes been criti- cised, like everything else, but it is well established, and seems based upon sound reason, and capable of practical, intelligent application by the ordinary juries of the country. Dreher v. Town of Fitchburg, 33 Wis., 675. §27. Same — definition of. In this State, unlike some others, three degrees of negli- gence have always been recognized, as slight, ordinary and gross. Such classification has been steadfast, and firmly ad- hered to for the last fifteen years. The distinguishing char- acteristic of negligence is inadvertence, or an absence of any intent to injure. Where there is simply the absence of care customary with persons of extraordinary prudence, it has been designated "slight negligence." Where the want of care is ' such as persons of ordinary prudence observe in the perform- ance of duty, it has been designated as "ordinary negligence." And where a person, in the presence of imminent danger to another, has a duty to perform to prevent such person from being injured, and with knowledge of the danger and present means and capacity to prevent it, rashly, recklessly or wan- tonly fails to do what he can to prevent such injury, the same has been designated "gross negligence." Lockwood v. Belle City Street R. Co., 93 Wis., 97. 6 PROXIMATE CAUSE. §28-33 §28. Same. If plaintiff's negligence was slight and remote, and that of the defendant gross, and the immediate cause of the injury, there may be a recovery. GaJpin v. Chicago & N. W. R. Co., 19 Wis., ©05. §29. Slight negligence. Although it is well settled that a slight want of ordinary care on plaintiff's part will defeat an action for negligence, yet it will not be defeated by "slight negligence'" on his part, that phrase properly denoting a waifit of extraordinary care. Dit- bemer v. Chicago, M. & St. P. R. Co., 47 Wis., 138. §30. Slight and ordinary negligence defined. "Slight negligence" is only an absence of that degree of care and vigilance which persons of extraordinary prudence and foresight are accustomed to use. "Ordinary negligence" is the want of such cajre as persons Cif ordinary prudence observe^ or the mass of mankind observe. Dreher v. Town of Fitchburg, 33 Wis., 675. §31. Presumption as to dtity. In the exercise of his lawful rights, every person has a right to presume that every other will perform his duty and obey the law, and it is not negligence for him to assume that he is not exposed to a danger which can only come to him through a disregard of law on the part of some other person. Kellogg' v. Chicago & N. W. R. Co., 26 Wis., 223. §32. Presumption of negligence. An accident may be of such a nature as to raise a pre- sumption of negligence, although the machinery was in fact in perfect working order. "When the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen, if those who have the management use proper care, it afifords reasonable evidence, in the absence of explana- tion by the defendant, that the accident arose from want of care." Kirst v. Milwaukee, L. S. & W. R. Co., 46 Wis., 489; Cummings v. National Furnace Co., 60 Wis., 603. §83. Sudden emergency. The principle that a person in k sudden emergency must select the best means of escape that occurs to him, is not §34-38 ACTIONABLE NEGLIGENCE. applicable to a case where a person has put himself in a posi- tion of danger by his own want of care. Haetsch v. C. & N. W. R. Co., 87 Wis., 304. §34. Presumption of specific act or omissioi^ not shown. Where the accident was of such a character as to raise a presiimption of negligence, either in the character of the ma- chinery used, or in the care with which it was handled, it is not necessary for the plaintiff to show a specific act of careless- ness, nor is the defendant entitled to have submitted to the jury for a special verdict a questibn requiring them to find such act. Cummings v. National Furnace Co., 60 Wis., 603. §.35. Skill — duty of party professing^. When skill and care are required in performing an under- taking and a party professes to have skill in the business, and undertakes for hire to do it, he is bound to perform it in a skillful and proper manner, and is answerable for the loss if he fails to do so. Kuehn v. Wilson, 13 Wis., 104. §36. Traveling on Sunday. In an action against a street' railway for personal injuries, the right of the plaintiff to recover is not affected by the fact that he was traveling for pleasure on the Sabbarth day. Knowl- ton V. Milwaukee City R. Co., 59 Wis., ST'S; see, also, Sutton V. Town of Wauwatosa, 29 Wis., 21. §37. Corporations — liability of directors for loss through negligence. Independent of any statute on the subject, directors of cor- porations are liable for corporate property misapplied or lost through their culpable negligence, and under Sections 3237- 3239 R. S. any creditor of such corporation can maintain aji action in equity against such directors to enforce such liability. Gores v. Day, 99 Wis., 276. §38. Imminent peril — choice of alternatives. The principle that one who, by another's negligence, is sud- ,denly placed in a situation where he must adopt a perilous alternative, does not adopt the safest or wisest course and is injured, is not to be charged with negligence, cannot and ought not to apply where the danger is simply a danger to property which has been, or should have been apprehended, for days prior to the event. Brown v. Brooks, 85 Wis., 290. 8 PROXIMATE CAUSE. §39"43 §39. Same. When there are two or more hnes of action, any one of which may be taken, and a railway agent or servant, with ordinary skill, in the presence of imminent danger, is com- ■ polled to choose one of them, and does so in good faith, the mere fact that it is afterwards ascertained by the result that his choice was not the best means of escape, is not sufficient to charge him with negligence. Gumz v. Chicago, St. P. & M. R. Co., 52 Wis., 672. §40. Mutual negligence — proximate cause. Where there has been mutual negligence, and the negli- gence of each party was the proximate cause of the injury, no action whatever can be sustained. In the use of the words, "proximate cause," is meant negligence occurring at the time the injury happened. In such case no action can be sustained by either, for the reason, that as there can be no appointment ot damages, there can be no recovery. Stucke v. Milwaukee & Miss. R. Co., 9 Wis., 202. §41. Proximate and remote negligence. When the negligence of defendant is pro:!(:imate, and that of plaintiff remote, the action can be sustained, although the plaintiff is not entirely without fault. ^Therefore, if there be negligence on the part of the plaintiff, yet, if at the time when the injury was committed it might have been avoided 1)y the defendant in the exercise of reasonable care and pru- dence, an action will lie for the injury. Stucke v. Milwaukee & M. R. Co., 9 Wis., 202; Valin v. Milwaukee & N. R. Co., 82 Wis., 1. §42. Same. Where the negligence of the plaintiff is proximate, that of the defendant remote, or consisting of some other matter than what occurred at the time of the injury, no action can be sustained. Stucke v. Milwaukee & Miss. R. Co., 9 Wis., 202. b. Proximate cause. §43. . Definition of. The proximate cause is the cause which leads to, and is instrumental in producing, the result. Chamberlain v. City of Oshkosh, 84 Wis.. 289. 9 §44^48 ACTIONABLE NEGLIGENCE. §44. Same. Proximate cause may be defined as the efficient cause, that which acts first and produces the injury, as a natural and prob- able result, under such circumstances that he who is responsible for such cause, as a person of ordinary intelligence and pru- dence, ought reasonably to foresee that a personal injury to another may probably follow from such person's conduct. It is not necessarily the immediate, near, or nearest cause, but the one that acts first/ whether immediate to the injury or such injury be reached by setting other causes in motion, each in order being started naturally by the one that precedes it, and altogether constituting a complete chain or succession of events, so united to each other by a close causal connection as to form a natural whole, reaching from the first or pro- ducing cause to the final result. Deisenreiter v. Kraus-Merkel Malting Co., 97 Wis., 379. §45. Same. The proximate cause of an event is some act, omission or fault naturally and ordinarily calculated to produce the injury, or from which the injury or accident might naturally and rea- sonably have been anticipated under the circumstances. Sut- ton V. Town of Wauwatosa, 29 Wis., 31. §46. Court must define what constitutes. It is for the court to say as a matter of law what constitutes "proximate cause" in the law of negligence, and for the jury to find whether the defendant is legally chargeable with having set it in motion in the particular case. Ibid, §47. Proximate consequences. The natural and probable consequences of a wrongful act are those which occur without the intervention of an inde- pendent and sufficient cause operating between the wrong and the injury. Brown v. Chicago, M. & St. P.'R. Co., 54 Wis., 342. §48. Test of actionable negligence — what constitutes "proximate cause." The test of actionable negligence is not whether the injury complained of was the immediate or the natural result of the conduct of another, but there must be the negligent act, an injury as a natural and probable result, either immediate or at the end of a succession of events united by a close causal chain, 10 PROXIMATE CAUSE. §49"52 reaching from the act complained of down to the injury and producing it. The attending circumstances in either case being such that a person of ordinary intelHgence and prudence might reasonably have expected the injury as a probable result of such negligent act. Ibid. §49. Besults should have been anticipated. Negligence is not the proximate cause of an accident unless, under all the circumstances, the accident might have been reasonably foreseen by a man of ordinary intelligence and pru- dence. It is not enough tO' prove that the accident is the natural consequence of the negligence. It must also have been the probable consequence. (Atkinson v. G. T. Co., 60 Wis., 141, 163; Barton v. P. Co., Ag. Soc. 83 Wis., 19.) Block v. Milwaukee Street R. Co., 89 Wis., 371. §50. Same. In order to sustain a special verdict finding defendant guilty of negligence, it must appear that the negligence was such that a person of ordinary intelligence and prudence would have reasonably expected that the injury in question would have happened in consequence of it. McGowan v. C. & N. W. R. Co., 91 Wis., 147. §51. Same. The negligence is not the proximate cause of the accident unless, under all the circumstances, the accident might have been reasonably foreseen ihy a man of ordinary intelligence and prrdence. It is not enough to prove that the accident is the natural consequence of the negligence. It must alsO' have been the probable consequence. Huber v. La Crosse City R. Co., 92 Wis., 636. §52. Same. The negligence alleged is not the proximate cause of the accident unless, under all the circumstances, the accident might have been reasonably foreseen by a man of ordinary intelli- gence and prudence. It is not enough to prove that the acci- dent is the natural consequence of the negligence. It must also have been the probable consequence. Davis v. Chicago, M. & St. P. R. Co., 93 Wis., 470; Block v. Milwaukee St. R. Co., 89 Wis., 371-8; Barton v. Pepin Co. Ag. Soc, 83 Wis., ' 19; Huber v. La Crosse City R. Co., 92 Wis., 636; Craven v.' 11 §53"55 ACTIONABLE NEGLIGENCE. Smith, 89 Wis., 119; Guinatd v. Knapp S. & Co. Co., 90 Wis., . 133, 129; McGowan v. C. & N. W. R. Co., 91 Wis., 147. §53. Same — must be found by jury. The mere fact that a person is injured by the failure to exercise ordinary care on the part of another in respect to some diity which such other owes to such person, does not render such other liable therefor, unless such injuries were the natural and probable result of such negligence, and one which, in the light of attending circumstances, such other ought reasonably to have foreseen might probably occur as a resnlt of such negligence. This is absolutely an esseritial element of proximate cause, requisite to actionable negligence; and, when there is no general verdict, and such element does not appear conclusively from the evidence, and is not found by the special verdict, no valid judgment can be given upon it. Sheridan v. Bigelow, 93 Wis., 426 ; citing Kreuziger v. C. & N. W., 73-158; Jewel v. C. & St. P. & M., 54-610; Kerkhof v. Atlas Pa. Co., 68-674; McGowan v. C. & N. W. R. Co., 91-147,' Huber v. La Crosse R. Co., 92-636. §54. Same. In order to warrant a finding that negligence, or an act not amounting to wantom wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the neghgence or wrongful act, and that it ought to have been foreseen in the light of attending circumstances. The question of negligence and proximate cause is ordinarily one for the jury, and is to be determined as a fact in vieyv of all the circumstances of fact attending it. At- kinson v. Goodrich Transportation Co., 60 Wis., 141. §55. Same. It is not enough to charge the defendant with negligence th.at the proximate cause of the injury was the natural conse- quence of the negligent act, but it must appear that it might reasonably hav^ been expected under all the circumstances, by a man of ordinary intelligence and prudence that such injury would result. An omission to take measures against a result which could not ordinarily and reasonably have been expected, is not negligence. Ibid. NOTE — As tha substance of the foregoing rules, It would seem that to warrant the jury in finding that the negligence complained of is the prox- imate cause of the injury, it is essential that the various elements which 12 PROXIMATE CAUSE. §56-57 go to make up what Is embraced in the term "proximate cause," are present and established by the evidence. These may be briefly stated and classified as follows: 1. The cause of the event must be the direct and producing cause, without the existence of which such event would not have occurred. 2. Such event so occurring must have been produced by such cause in a close causal chain of events, unbroken by any intervening cause. 3. The injuries resulting from the negligent act mnst be such as a person of ordinary intelligence and prudence ought, in the light of the surrounding circumstances, to have reasonably foreseen as the probable result of such act. It is not enough to prove that the accident or injury was the natural result of the negligent act, but it must also have been the probable result. §56. Burninif buildings — questions for, jury. Defendant was charged with negligence in running up a harbor with a steam-boat, which was unskillfully and negli- gently equipped, by failing to have any spark-arrester or con- trivance for preventing the escape of sparks and fire from the smoke-stack of said boat, and with negligently starting such steam-boat from its wharf on the shore of the river; which was covered by old and dry wooden buildings, highly combustible, and with a heavy wind blowing across the course of the vessel towards the said buildings, said steamer going under a heavy head of steam, the smoke-stack of said vessel in the meantime throwing out large quantities of sparks and fire, and as a result from said fire plaintiffs house, some 3,500 feet distant from the origin of the fire, was burned. Held that the questions of negli- gence and proximate cause were for the jury, and that the direction and force of the wind, the dryness of the buildings and the distance from the building first fired to plaintiff's house were alL facts to be considered by the jury upon such ques- tions. Atkinson v. Goodrich Trans. Co., 60 Wis., 141. §57. Causa proxima non remota spectatur. The maxim, cau.sa proxima non remota spectatur, is not controlled by time or distance, nor by the succession of events. An efficient, adequate cause being found, must be deemed the true cause, unless some other cause, not incidental to it, but independent of it, is shown to have intervened between it and the result. The maxim includes liability for all actual injuries which were the natural and probable result of the wrongful act or omission complained of, or were likely to ensue from it under ordinary circumstances. So held in an action against a railroad company for damages resulting from fire originat- ing on defendant's right of way which communicated to plain- 13 §58-59 ACTIONABLE NEGLIGENCE. tiff's property at a distance of 140 rods from where the fire started. The drouth and high wind in this case were not extraordinary but ordinary circumstances within the meaning of this rule. Kellogg v. Chicago & N. W. R. go., 36 Wis., 223. §58. Same. The cause of an event is the sum total of the contingencies of every description, which, being realized, the event invariably follows. It is rare, if ever, that the invariable sequence of events subsists between one antecedent and one consequent. Ordinarily, that condition is usually termed the cause whose share in the matter is most conspicuous, and is the most imme- diately preceding and proximate to the event. The maxim (injure non remota causa, sed proxima, spectatur) is ijot to be controlled by time or distance, but by the succession of events, and the natural and ordinary means to produce the alleged consequence must be shown; and that the pArty mig'ht have reasonably expected such a consequence of his negligence, or that such a result would be an ordinary natural consequence from such a cause, or that such a consequence would be prob- able from such a cause. In illustration of the rule, the court quotes: "It is as much so as pain and disability are proximate effects of an injury, though they occur at intervals through successive years after the injury was received. Yet these are called proximate effects, though the actual effects of the injury may be greatly modified in every case by bodily constitution, habits of life, and accidental circumstances." Jucker v. Chi- cago & N. W. R. Co., 53 Wis., 150. §59. Test of liability. The true test of defendant's liability is that only such dam- ages as are the natural and ordinary consequence of the act can be recovered, unless the actual consequences might have been anticipated by the defendant. Stewart v. City of Ripon, 38 Wis., 584; Barton v. Pepin County Ag. Soc, 83 Wis., 19. Also, the act or negligence' complained of must be the direct and proximate cause of the injury. Oleson v. Brown, 41 Wis., 413; Holmes v. City of Fond du Lac, 42 Wis., 282; Oliver v. Town of La Valle, 36 Wis., 592. The injury, as a consequence of the act, must be both nat- ural and probable. Barton v. Pepin County Ag Soc 83 Wis., 19. 14 PROXIMATE CAUSE. §60-64 §60. Test of proximate cause. The test of proximate cause is whether a person of ordinary intelligence and prudence, under similar circumstances, ought to have expected that an injury would occur by reason of his neghgent act. McGowto v. C. & N. W. R. Co., 91 Wis., 147. Pier V. C. M. St. P. R. Co., 94 Wis., 357. §61. When damages are proximate. The damages are proximate when they are the direct, imme- diate, ordinary, usual and natural result of the negligence, and therefore might reasonably have been expected. The damages must follow the negligence as the efficient cause in unbroken ' sequence, without any intervening independent causes to break the continuity. Mueller v. Milwaukee St. Ry. Co., 86 Wis., 340. c. Cases illustrating doctrine. §62. Horses running away — wheel dropping in ditch. Decedent and another were driving a span of horses attached to a buggy along the highway at night, when the , right wheel dropped in a ditch, and the driver was thrown out, losing the reins. The horses became excited, and ran, when a little further on, the left wheel dropped into a ditch, throw- ing deceased out. If the defect in the highway was the cause of the horses running away, it may well be held the proximate cause of the injuries. Donohue v. Town of Warren, 95 Wis., 367. §63. Same. A fair association permitted teams to be driven around the race track after the races were over. The driver of a team of young horses whipped them into running away and they ran off the track and injured a visitor at the fair. Held, that the injury was not the direct or natural consequence of the permission to use the track, but was caused proximately by the acts of the driver, and that the association is not liable therefor. Balrton v. Pepin County Ag. Soc, 83 Wis., 19. §64. Injury to carriage by sudden stoppage of street car. A street car stopped suddenly in the middle of the inter- section of two streets, directly in front of the front team (plam- tiff's) of a funeral procession, which caused the team to stop within 5 feet of the car, and causing the first carriage in the rear also to stop suddenly, and its pole came in contact with 15 §65-66 ACTIONABLE NEGLIGENCE. the rear of his carriage and broke in its panels. Held, stop- page of the car was the proximate cause of the accident. Muel- ler V. Milwaukee Street Ry. Co., 86 Wis., 340. §65. Fire caused by lightning. Two large frame buildings, about 325 feet apart, stood upon a plateau about 80 fee^ above the surrounding country. Both buildings were about the same height, and on the top of each stood a flag pole 20 to 30 feet high. Defendant had left an unused telephone wire running from plaintiff's barn, one of said buildings, to the other. No permission was ever given by- plaintiff to put such wire there and he testified he never knew it was there. One night there was a flash of lightning which descended upon the other building, and in a few minutes the roof of plaintiff's barn was in flames. There \yas testimony that the flag pole on the building struck by lightning was com- pletely shattered, and that on plaintiff's barn untouched. Held, sufficient to sustain a verdict that the negligence of defendant in leaving the wire so connected was the proximate cause of the injury. It cannot be said as a matter of law that it was entirely improbable that a building situated as was the building so' struck, should be struck by a discharge of lightning; and a verdict finding the bolt which shattered the flag pole was the same one that struck the barn cannot be said, under the evi- dence, to be based on conjecture. Jackson v. Wisconsin Tele- phone Co., 88 Wis., 243. §66. Injury to employee of electric light company. An employee of an electric light company, which was under contract with an electric street railway company for the removal of certain street lamps, was injured by coming in contact with a wire of the railway company, and the iron post to which it was attached, while he was climbing a wooden pole near it. It was not necessary for him to touch the wire beyond a cer- tain point and even if he did, it would not have injured him unless he completed the circuit by also touching the iron post with his naked hand. He was an experienced workman, and familiar with such wires and their insulation. Held, that defend- ant had no reason to expect that any one would climb to such a point, much less an experienced workman, and complete the electrical circuit with his body, and that the negligence of de- fendant relied on was not the proximate cause of the injury. Huber v. La Crosse City R. Co., 92 Wis., 636. 10 PkOXIMATE CAUSE. §67-70 §67. Must be established by verdict. In an action for personal injuries, there was no question in the special verdict submitted to the jury as to whether the negligence of defendant was the proximate cause of the acci- dent, although such a' question was requested by defendant. Unless the question of proximate cause is fairly and substan- tially answered by the special verdict, no judgment can be given on it, and its absence is not cured by a general verdict where defendant, by silence, did not waive a special finding on that issue. Klatt v. N. C. Foster L. Co., 93 Wis., 622. §68. Same — ^injury to boy of eleven years. Plaintifif was a boy of 11 and employed in defendant's box factory at a planer, and was iijjured by having his hand caught in the knives, and brought action for his injuries. The jury returned a special verdict, finding that defendant ought rea- sonably to have known or anticipated the danger of plaintiff's slipping and getting his hand in the knives of the planer, but there was no finding that he did slip, or, if he did, that such slipping was caused by defendant's want of ordinary care, and no direct finding of negligence on the part of defendant, or that defendant's negligence was the proximate cause of the injury, and the special verdict was held insufficient to support judgment for plaintifif. Kutchera v. Goodwillie, 93 Wis., 448. §69. Same. A special verdict finding that plaintiff was injured while operating a machine in defendants factory by direction of the foreman having control of the work on such machine; that there was a defect or want of repair in the machine at the time; that defendant did not give plaintiff such general instruc- tions and caution as would enable him, by the use of his intel- ligence, to comprehend the danger which he might incur in his work, but containing no finding that plaintiff's injury was caused by such defect in the machine or failure to give proper ' instructions, or that it was caused by the defendant's negli- gence, proximate or remote, is fatally defective. Bagnowski V. A. J. Lindeman & Hoverson Co., 93 Wis., 392. §70. Same. When the evidence makes it a disputed question as to whether the plaintiff received her injuries as the direct and / proximate cause of the negligence complained of, or of some 2 , 17 ^7'l-74 ACTIONABLE NEGLIGENCE. independent or intervening cause for which the defendant was not liable, the court erred in refusing the request of the defend- ant to submit such question to the jury. Kreuziger v. Chicago & N. W. R. Co., 73 Wis., 158. §71. Stone in highway — driving rein giving way. Plaintiff, while driving his horse along a highway, struck the horse with his whip so that she started up suddenly, and in his endeavor to hold her, the right rein gave way, and he held on to the left rein, thereby turning the horse so that the vehicle struck against a stone in the road, and he was thrown out and badly injured. It was Held that the stone was not the proximate cause of the injury, and that plaintiff could not recover. McFarlane v. Town of Sullivan, 99 Wis., 301. §72. Loosened rung in post — employee faUing. A railroad employee, engaged to operate a semaphore at night, testified that he climbed the pole to light the .lantern, and while clutching one of the iron rungs driven into the pole, it turned in his hand, owing to its being loose, whereby his hold was loosened, and he fell a short distance, causing a rup- ture; that he walked some distance to the depot to perform other duties, and then returned to the pole, at 11:30 p. m. on a dark night, climbed the pole, and drove the rung in securely. There was a conflict of testimony as to whether the rungs had been driven into the pole in defeildant's shop, or after it had been raised. On this evidence, it was held, the questions of proximate cause, of the fact as to the manner in which plain- tiff's injuries were received, and the negligence of the parties were properly left to the jury. Welty v. The Lake Superior T. & T. Co., 100 Wis., 128. §73. Depression in sidewalk — ^ice. A depression in a crosswalk had been filled with ice through the sole agency of the elements, and plaintiff was injured by falling upon the smooth and level surface. Held, that the ice and not the depression was the proximate cause of the injury, and that such condition of the walk did not constitute an actionable defect. Chamberlain v. City of Oshkosh, 84 Wis., 289. |74. Broken beam — ^broken wagon axle, ' In an action to recover for personal injuries caused by a 18 PROXIMATE CAUSE. §75-77 defective bridge, it appeared that a beam in the bridge broke, and that the axle of the wagon also broke, and the evidence was very obscure as to how the breaking of the axle affected the load upon the wagon. It was therefore error not to require the jury to determine whether the breaking of the axle or the falling of the bridge was the proximate cause of the injury. Spaulding v. Town of Sherman, 75 Wis., 77. §75. Unmanageable horses — ^unguarded precipice. An ordinarily quiet and steady team, standing in a street near a mill, became suddenly frightened and unmanageable, and backed down a steep embankment 20 feet away, which -had been left unguarded by the city, and thus caused injury to the plaintiff who was seated in the wagon, and who did what she could in the sudden emergency to keep the team from backing, but failed'.' Held, city liable, the lack of barrier being the proximate cause of the injury. Olson v. City of Chippewa Falls, 71 Wis., 558. §76. Defective sidewalk — ^predisposition to disease. The public streets and sidewalks of a city are for the use of the sick and infirm and those with organic predisposition to disease, as well as for that of the healthy and robust; and the corporation is chargeable with knowledge that persons of the forrner classes constantly travel its highways, and that a bodily injury to such from a defective highway may be greatly aggravated by their diseased condition. If, therefore, the diseased condition of plaintiff's arm would not have occurred but for his organic tendencjr to scrofula, still defendant's negligence must be regarded as the proximate cause of the whole injury. Stewart v. City of Ripon, 38 Wis., 584. §77. Defective highway — ^horse falling from bridge — additional proximate cause. Where, besides the defect in the highway, there is another proximate cause contributing directly to produce the injury, which cause is not attributable to plaintiff's negligence, nor that of any third person, the town is still liable in case the jury shall find that the damage would not have been sustained but for the defect in the way. So held, in a case where plaintiff's horse, passing over a bridge without guards, suddenly stopped, staggered, fell sidewise and went over the side of the bridge . 19 §78-80 ACTIONABLE NEGLIGENCE. on to the ice in the river below, carrying- him with it, there being no want of care or prudence on plaintiff's part. Houfe V. Town of Fulton, 29 Wis., 296. §78. Defective platform steps — questions for jury. Plaintiff, a woman 72 years old, was put off defendant's train with her trunk, at a depot between 9 and 10 p. m. The depot was not upon any public highway, nor was it opened or lighted, and there was no one there to give her information, and plaintiff was not familiar with the locality. Seeking in the dark for the highway on which she knew was situated the house where she wished to go, she failed to find the way to such highway, it being across a field, over a stile on one side and through a gate on the other. Becoming bewildered, she returned to defendant's platform, and afterward, in trying to reach the other end of the platform to shelter herself from the cold wind, she fell down a flight of three steps in the plat- form and was injured. There was no defect in the plat- form or steps, and the injury occurred more than an hour after she first left the platform. Held, that the question whether the absence of any light at the depot, or any person to give information, under all the circumstances, was negligence on defendant's part, and whether, if so, such negligence was the proximate cause of the injury, were properly left to the jury. Patten 'v. Chicago & N. W. R. Co., 32 Wis., 534. §79. Horses frightened by train. Plaintiff's horses being frightened by the train, jumped over the cattle guard at the crossing, and one of them ran along the track until he got entangled in a bridge and was injured. Held, that such fright could not be regarded as the proximate cause of the injury nor a basis of recovery. Lynch v. N. P. R. Co., 84 Wis., 348. §80. Crossing above highway — defectively constructed bridge. Section 1837, R. S., provides that whenever it shall be necessary to construct a bridge over a street, it shall be suffi- cient to construct the same so as to give one clear passage- way of 20 feet, or two passage-ways of 14 feet each. Under the bridge in question there were three passage-ways — one of 12 feet, one of 14 feet 9 inches, and one of 14 feet 5 inches in width, through which plaintiff attempted to pass, when her 20 PROXIMATE CAUSE. §81-84 horse became frightened, the buggy struck one side of said passage-ways and she was thrown out and liurt. Held, the fact that the adjoining passage-way was less than the statutory width was not, in any legal sense, a direct or efficient cause of the injury. Barron v. Chicago, St. P. M. & O. R. Co., 89 Wis., 79. §81. Signals — ^injury at street crossing. Findings by the jury that but one whistle was sounded; that the bell was not rung continuously; that the train was run at the unnecessarily dangerous speed of thirty-five miles an hour; and that these acts and omissions constituted negligence on the part of the defendant and were the proximate cause of the acci- dent, are I also held to be sustained by the evidence. Heath v. Stewart, 90 Wis., 418. §82. Derailment of train. In an action for personal injuries to a passenger caused by derailment of a train, the testimony for plaintiff was to the effect that the accident was caused by a defective track, and defendant's testimony was that it was caused by obstructions placed on the track by discharged employees. There were findings in the special verdict that the track was not in good condition, and that defendant was guilty of negligence which occasioned the injury, but leaves the question of proximate cause unanswered, and the verdict is therefore insufficient. Davis V. Chicago, M. & St. P. R. Co., 93 Wis., 470. §83. Fires negligently set. In an action against a railway company for fires on its right of way communicating to plaintiff's cranberry marsh and dej- stroying the vines thereon, the negligent acts of defendant must be the proximate cause of the injury to plaintiff, and a clear connection should be shown between the negligent act of the defendant and such injury. Marvin v. Chicago, M. & St. P. R. Co., 79 Wis., 140. §84. Intervening cause. An intervening cause not necessarily following the first negligent act, such as a heavy wind suddenly springing up, and carrying a brand of fire over an intermediate ridge into a little marsh connecting with plaintiff's inarsh, may operate to prevent liability on part of the defendant. Ibid. 21 §85-87 ACTIONABLE NEGLIGENCE. §85. Defective appliance — negligence of co-employee. Plaintiff, who was a brakeman and had been employed by defendant for about a year, was injured by having his hand caught between a freight car and the goose-neck coupling iron, yhich projected from the rear end of the engine, the engine having been backed down upon him without any warning. Said engine was not a regular switch engine, which does not have this goose-neck projection, but was an ordinary passenger engine, and had been used by the plaintifif for sixteen days before the injury in making such couplings, and if used with proper care was as safe for switching purposes as any other. Held, that the negligence of his co-employees, those in charge of the engine, and not any defect in the engine itself, was the proximate cause of the injury, and that consequently defendant is not liable. Fowler v. Chicago & N. W. R. Co., 61 Wis., 159. §86. Same — ^injury to brakeman. While the brakeman was necessarily engaged beneath the platform of two cars in attempting to pry apart the two jaws of the opposite draw bars, he was killed, through the negligence of the conductor in signaling to the engineer to go ahead, and the train starting up injured the brakeman so that death was caused. The chains connecting the lever with the draw bar were broken, but such fact did not an any way afifect the security or operation of the train. Held, that the negligence of the conductor in starting the train, and not the failure of the de- fendant to have the chains repaired, was the proximate cause of the injury. Pease v. Chicago & N. W. R. Co., 61 Wis., 163. §87. Contributory negligence. In an action against a railway company for personal injury, the court held the plaintifif guilty of contributory negligence upon the facts in the case. Upon a motion for rehearing it was urged that the injury could have been avoided by the locomotive engineer, if in the exercise of due care. Even if the accident might have been avoided by the exercise of rea- sonable care on the part of the engineer after discovering plain- tiff's negligence, it is doubtful whether plaintiff could recover, since, up to the very moment of the injury, his negligence mingled, as an efficient and equaJly operating cause, with tlie negligence of the engineer. Schmolze v. C. M. & St P R Co., 83 Wis., 659. 22 PROXIMATE CAUSE §88 §88. Same. Plaintiff, in attempting to board a moving' street car, slipped and fell, and was dragged 160 feet before the car stopped. Although the jury found he was not in the exercise of ordinary care at the time, yet his contributory negligence would not prevent his recovering from defendant if the driver could have avoided the injury by the exercise of reasonable care. Wood- ard V. West Side Street R. Co., 71 Wis., 625. 23 CHAPTER II. CONTRIBUTORY NEGLIGENCE. a. In general. \ b. At highway crossings — Qtiestions for jui^y. c. At highway crossings — Questions for court. , d. Cases against municipal corporations, e. Cases against railroads. f. Miscellaneous cases. a. In general. §89. Definition of. Contributory negligence is some act or conduct of the plaintiff having the relation to the injury of which complaint is made, of a cause to the effect produced by it. It is want of care or negligence on his part contributing to the injury com- plained of. Sutton V. Town of Wauwatosa, 29 Wis., 31. §90. Plaintiff must show himself free from. The plaintiff should show affirmatively that his own negli- gence did not in any way contribute to produce the injury. Chamberlain v. Milwaukee & Miss. R. Co., 7 Wis., 425; Dress- ier V. Davis, 7 Wis., 527. §91. When plaintiff's testimony shows contributory neg- ligence. When the plaintiff's testimony affirmatively shows that he has been guilty of negligence which contributed to the injury complained of, he cannot recover, and it is proper for the court to order a nonsuit. Milwaukee & C. R. Co. v. Hunter, 11 Wis., 160. §92. What will defeat recovery. In actions for personal injuries, slight negligence of the injured person directly contributing to such injuries, will defeat recovery. Chamberlain v. Milwaukee & Miss. R. Co., 7 Wis., 425; Potter v. Chicago & N. W. R. Co., 21 Wis., 372; Lang- hoff V. Milwaukee & P. du Ch. R. Co., 23 Wis., 43 ; Cunning- ham V. Lyness, 22 Wis., 245. §93. Same. Any want of ordinary care, however slight, on the part of the injured person, which contributed to the injury received on a defective highway, will prevent a recovery. Cremer v. Town of Portland, 36 Wis., 93. 24 IN GENERAL. §94-98 §94. Same — known danger to person or property. If a person places himself or his property in a position of known danger, when he might avoid it, he is guilty of negli- gence; and although the danger may have been caused by the negligence of another, if the party thus taking the risk of injury is injured thereby, he cannot maintain an action for damages against the other, because his own negligence con- tributed to the injury. Goldstein v. Chicago, M. & St. P. R. Co., 46 Wis., 404. §95. Presumption as to. In an action for injuries from negligence, where there is nothing in plaintiff's evidence tending tO' show contributory negligence, the presumption is against it, and the burden of proof upon the defendant. Hoyt v. City of Hudson, 41 Wis., 105. NOTE — In Chamberlain v. R. R. Co., 7 Wis., 425, and Dressier v. Davis, id., 527, it was held plaintiff must show himself free from contributory negligence in order to recover. This rule was strongly criticized by Justice Paine, in R. R. Co. v. Hunter, 11 Wis., 160, but the Chamberlain case was not overruled. In Achtenhagen v. Watertown, 18 Wis., 330, Chief Justice Dixon treats the rule as no longer prevailing. The rule as stated in Hoyt T. Hudson, supra, has since never been denied in this State. §96. Plaintiff must be free from, i In order to recover injuries caused by the negligence of another, the injured person must himself have been in the exercise of ordinary care at the time of the injury; Eingartner v. Illinois Steel Co., 94 Wis., 70. §97. Same. Any negligence, however slight, on the part of the deceased, if proximate or contributing to the injury, will prevent recov- ery. Potter V. Chicago & N. W. R. Co., 21 Wis., 372. §98. Same. In an action for injury sustained through the negligence of the defendant, it is not necessary for the plaintiff to show in the first instance that he was not guilty of negligence con- . tributing to the injury, but it is enough if the testimony intro- duced and the circumstances attending the injury establish prima facie that it was occasioned by the negligence of the defendant; but if plaintiff's own evidence raises an inference of negligence against himself he must in order to establish a prima facie case show that he was guilty of no negligence. Achten- hagen V. City of Watertown, 18 Wis., 331. 25 §99-105 CONTRIBUTORY NEGLIGENCE. §99. Same. The doctrine is that contributory negligence, to defeat an action, must be that of the plaintiff or of some person for whose acts he is responsible. (Stetler v. C. & N. W. R. Co., 46 Wis., 497) adhered to. Stetler v. Chicago & N. W. R. Co., 49 Wis., 609. §100. Same. There can be no recovery for injuries to the person from defendant's negligence, if the plaintiff was guilty of negligence (thought it was slight and that of defendant gross), which con- tributed directly to the injury. Cunningham v. Lyness, 22 Wis., 245 and cases cited. ' §101. Same. The general rule is that a party cannot recover for an injury of which his own negligence was, in whole or in part, the proximate cause. If McCall v. Chamberlain is an exception to the rule (which is not determined), it stands alone. Pitzner v. Shinnick, 39 Wis., 129. §102. Same. The rule in this State is, that a slight want of ordinary care on plaintiff's part, contributing directly to the injury, will defeat his recovery, however gross defendant's negligence may have been, provided his act was not willful and malicious. Randall v. N. W. Telegraph Co., 54 Wis., 140. §103. Burden of proof as to. It is the settled rule in this State that contributory negli- gence is purely matter of defense, and the burden of proof in relation thereto upon the defendant; and where evidence introducd by the plaintiff tends to show contributory negli- . gence, while defendant may avail himself of such evidence, the burden of proof is not shifted thereby. Randall v. N. W. Telegraph Co., 54 Wis., 170. §104. Same. It is well settled by adjudicated cases that the burden of proof of contributory negligence is ordinarily on the defendant. Vahn V. Milwaukee & N. R. Cp., 82 Wis., 1. §10.'i. Same — co-employee statute. Sec. 1816a, S. & B. Ann. Stats., making railway companies liable for injuries to an employee caused by certain other em- 26 IN^GENERAL. §Io6-III ployees of the company, does not change the rule as to the burden of proving contributory neghgence. Dugan v. Chi- cago, St. P. M. & O. R. Co., 85 Wis., 609. §106. Same. Contributory negligence is purely a matter of defense, and the burden of proving it is on the defendant, except when the testimony on the part of the plaintiff discloses such negligence. Gill V. Homrighausen, 79 Wis., 634. §107. Inference as to. The fact that a boy old enpugh to be responsible" for his own negligence fell through a hole in the bridge, which had existed for a long time, and of which he was presumed to have had knowledge, does not raise a presumption of want of ordinary care on his part, and the burden was on the defendant to show the want of it. Strong v. City of Stevens Point, 63 Wis., 355. §108. When plaintiff's negligence will not defeat re- covery. The negligence of the plaintiff at the time of the, accident will not defeat a recovery if such negligence in no manner con- tributed to the accident. Cummings v. National Furnace Co., 60 Wis., 603. §109. When question for jury. In most cases the question of contributory negligence on the plaintiff's part, is one of fact for the jury. Wheeler v. Town of Westport, 30 Wis., 393. §110. Same. The question of contributory negligence is one eminently proper for a jury to determine, and where the evidence does not clearly and indisputably show such negligence or want of care on the part of the plaintiff suing a town for injuries received by him, caused by a defective highway, as to leave nothing to submit to the jury upon the opposite theory or position, a non-suit should not be granted. Houfe v. Town of Fulton, 29 Wis., 296. §111. Same. "The question of contributory negligence is eminently proper for the jury to determine, and when the evidence does not clearly and indisputably sho^ such negligence or want of care on the part of the plaintiff, so as to leave nothing to sub- 27 §112-117 CONrRIBUTOKY NEGLIGENCE. mit to the jury on the opposite theory or position, a non- suit should not be granted." Promer v. Milwaukee, L. S. & W. R. Co, 90 Wis., 216; Houfe v. Town of Fulton, 29 Wis., 296. §112. Same — appearing from plaintiff's evidence. If contributory negligence conclusively appears from plain- tiflf's own evidence, he will be non-suited; while if the evidence merely tends to show such negligence the question will be for the jury. Hoth v. Peters, 55 Wis., 405. §113. Same. The question is not whether plaintiff might have avoided the injury, but whether he exercised reasonable and proper care, and made reasonable and proper effort, under all the cir- cumstances, to avoid it; and this is peculiarly a question of fact for the jury. Karasdch v. Hasbrouck, 28 Wis., 569. §114. Same. The question of contributory negligence, being fairly debatable upon the evidence, is for the jury. Dorsey v. Philips & C. Con. Co., 42 Wis., 583. §115. Same. Unless the proof of contributory negligence is so clear and* decisive as to leave no room for unbiased or impartial minds to come to any other conclusion, or is so clear and conclusive as not to admit reasonably of any opposing inference in unbiased and unprejudiced minds, the proper inference to be drawn must be determined by the jury. Powell v. Ashland I. & S. Co., 98 Wis., 35; Duame v. Chicago & N. W. R. Co., 72 Wis., 523; Winstanley v. Chicago, M. & St. P. R. Co., 72 Wis., 375. §116. When question for court. Where the material facts affecting the question of the alleged contributory negligence of the plaintiff are undisputed, and they admit of no doubtful or opposing inferences, whether or not those facts establish such negligence is a question of law for the court. Seefeld v. Chicago, M. & St. P. R. Co., 70 Wis., 216. §117. Same. The question of contributory negligence is ordinarily for the jury; but when there is no evidence thereof, and all the inferences that may fairly be drawn from the evidence, point to but one conclusion, the question of such negligence is for the court. Bills v. Town of Kaukauna, 94 Wis., 310. 28 IN GENERAL. §11 8 I 24 §118. Same. The proof of contributory negligence must be clear and decisive, so as to leave no room for unbiased and impartial minds to come to any other conclusion, in order to warrant an alsolute direction to the jury on that ground. Steinhofel v. Chicago, M. & St. P. R. -Co., 93 Wis., 128. §119. Same. While in a proper case, and perhaps in most cases, the question of negligence is for the jury, yet where negligence conclusively appears, whether by averment or undisputed evi- dence, the court must so hold. Goldstein v. Chicago, M. & St. P. R. Co., 46 Wis., 404. §120. Same. The proof of contributory negligence must be clear and decisive, not leaving room for impartial and unbiased minds to arrive at any other conclusion, in order to warrant a non-suit or an absolute direction to the jury, on the ground of contributory negligence. Crites v. City of New Richmond, 98 Wis., 55. §121. Ordinary care defined. Ordinary care is such care as would ordinarily be exercised by persons of the age and in the situation of the person sought to be charged with negligence; and the fact that the person injured was a child of tender years, is to be considered in de- termining the question of contributory negligence. Townley V. Chicago, M. & St. P. R. Co., 53 Wis., 636. §122. Slight negligence. A slight want of ordinary care on the part of the plaintifif, tontributing proximately to cause the injury, will defeat the action, while only slight negligence will not. Bloor v. Town of Delafield, 69 Wis., 373. §123. Same— definition of. "Slight .negligence" is not a slight want of ordinary care, but a want of extraordinary care ; and the law does not require such care of a person injured by the negligence of another, as a condition precedent toi his recovery. Dreher v. Towri of Fitchburg, 23 Wis., 675; 39 id., 144; Cremer v. Town of Port- land, 36 Wis., 92. §124. Concurring negligence. When the evidence introduced by the plaintifif himself shows 29 §125-129 CONTRIBUTORY NEGLIGENCE. that his negligence concurred with that of the defendant to pro- duce the injury complained of, the jury have no duty to per- form, but the court must decide the question as one. of law, and a compulsory nonsuit should be granted. Delany v. Mil- waukee & St. P. R. Co., 33 Wis., 67; Achtenhagen v. City of Watertown, 18 Wis., 331 ; Rothe v. Milwaukee & St. P. R. Co., 21 Wis., 256; Langhofi v. Milwaukee & P. du Ch. R. Co., 33 Wis., 43; Nicks v. Town of Marshall, 24 Wis., 139; Butler v. Milwaukee & St. P. R. Co., 28 Wis., 487. §125. Of infants. An infant 18 months of age is not itself capable of such negligence as will defeat a recovery. Schmidt v. Milwaukee & P. du C. R. Co., 23 Wis., 186. §126. Same. The question of the contributory negligence of a child injured by reason of a defective sidewalk is to be determined as in the case of an adult, except that the child should not be held to as high a degree of care and responsibility. Reed v. City of Madison, 83 Wis., 171. §127. Intoxication will not excuse. Intoxication of a deceased person is not an excuse for his negligence. McDonald v. Chicago, M. & St. P. R. Co., 75 Wis., 121. §128. Crossing railway tracks after warning. If a person enters upon a railway track after receiving timely warning that it is about to be used for the passage of trains, he does so at his peril, and if a personal injury results by his being struck by a train, such result is attributable to his contributory negligence, and neither he nor his personal repre- sentatives can recover therefor. Douglas v. Chicago, M. & St. P. R. Co., 100 Wis., 405. b. At highway crossings — questions for jury. §129. Obstructed view — failure to see train. In an action for damages caused by defendant at a highway crossing plaintiff testified he was driving slowly along at a little trot expecting that if a train were coming warning would be given by a bell or whistle. He was unable to see a train approaching in one direction by reason of a high bank left between the hig'hiway and the railroad by tlie company when it 30 AT HIGHWAY CROSSINGS. §130-131 laid its track, and was unable to see a train approaching from that direction until he got within a few feet of the track. Upon this state of facts the question of contributory negligence was properly one for the jury. Roberts v. Chicago & N. W. R. Co., 35 Wis., 679. §130. Same — ^no signals — excessive speed. Plaintiff's intestate was killed at a railway crossing by a locomotive which, with only a tender and snow-plow, was run- ning northward at a high rate of speed, and had given no signal of its approach. The evidence showed, among other thitigs, that no regular train was due at the time, and that deceased knew it; that he had just unhitched his horses from a logging sled at a point about thirty feet eg.st of the crossing, and was driving them westward along the track; that it was a cofd, blustering day, with snow, and the wind blowing strongly from the northeast, and that the view of the track by deceased, until about fifteen feet distant therefrom, was obstructed by piles of logs and snow; that the locomotive approached with much less noise than an ordinary train, and that deceased saw the loco- motive when it was 164 feet away, and he was within 8 or 9 feet of the track, and one horse having its fore feet on the track, but he had no opportunity, of observing the rate of speed of the locomotive, and was struck before he could cross the track. Held, the question of contributory negligence was for the jury. Valin V. Milwaukee &-N. R. Co., 82 Wis., 1. §131. Same. Where the proper warnings of a train coming at 45 miles an hour were given; that plaintiff's horse, from 200 feet east of the crossing, was going at 3J4 miles an hour, and that the train could be seen from that point for a distance of 3,600 feet; the plaintiff and engine were going in the same direction, the street crossing the track at an acute angle of 30°, so that plain- tiff in approaching the crossing would have her back partially towards the approaching train; that the accident was on Sun- day, when no train was' due; that the plaintiff and her sister looked when they were 200 feet away, again at 100 feet distance, and once after that, and saw nothing; that they first heard or saw the engine when it was about 400 feet away, and too late to avoid the collision; and that from a point 70 or 80 feet from the track until within a few feet thereof, the view of an approach- 31 §I32-I34> CONTRIBUTORY NEGLIGENCE. ing engine would be shut off by a water tank. Held, the ques- tion of contributory negligence was properly left to the jury. Hahn v. Chicago, M. & St. P. R. Co., 78 Wis., 396. §132. Same. Plaintiff was run into and injured by a train while- driving a four mule team with a heavy load of lumber across defendant's tracks on the main street of an unincorporated village. The evidence — showing, among other things, that there were four separate tracks about thirty feet apart crossing the street; that plaintiff was not familiar with the locality ; that as he approached his view to the north, whence the train came, was obstructed by a building and by a box car standing on the first track; and that he stopped to look and listen at the last place where' lie could get a view to the north before commencing to cross the tracks, is held, to sustain a finding of the jury that plaintiff was not guilty of contributory negligence, although, perhaps, he did not look to the north immediately after emerging from behind the car on the first track. Nelson v. Duluth, S. S. & A. R. Co., 88. Wis., 392, distinguished; Heath v. Stewart, 90 Wis., 418. §1.33. Person dragged on track by frightened horse. When the engine and first section of cars passed the street, deceased was standing at the head of his horse, harnessed to a buggy, about seventy-seven feet from the track, facing towards the rear section, with his horse's head and neck intervening. The horse tried to get away, and while trying to hold him, deceased was drawn on the track and killed by a collison with the rear section of cars. If he actually saw the cars approach- ing, he was guilty of contributory negligence in thus getting on the track, but it was for the jury to determine whether, under all the circumstances of the case, it was negligence in him not to look for or apprehend that such cars would approach, and their verdict will not be disturbed. Butler v. Milwaukee & St P. R. Co., 28 Wis., 487. §134. Driver standing on lumber in box bobsleigh. It was a question for the jury whether a person injured while driving over a defective railway crossing, standing upon a pile of 200 feet of lumber in the box of a bobsleigh, was guilty of contributory negligence. McDermott v. Chicago, M. & St P. R. Co., 91 Wis., 38. 32 AT HIGHWAY CROSSINGS. §135-137 §135. Running switch — smoke and steam obstructing view. While a running switch was being made in a village the plaintiff attempted to cross the track immediately after the pass- age of the engine. There was nothing in the evidence to show that he knew or ought to have known that a switch was being made, and there was testimony to the effect that the noise of the approaching car was drowned by the passing engine, and that when plaintiff stepped upon the track he was so enveloped in smoke and steam from the passing engine that the car could not be seen. The question of plaintiff's contributory negligence was properly for the jury, and a special finding that if the plain- tiff had waited until the smoke and steam made by the passing engine cleared away before stepping on track, he could have seen the approaching car had he looked, is not decisive on that question. Ferguson v. Wis. Cent. R. Co., 63 Wis., 145. §136. Train going in one direction — plaintiff struck by engine going opposite. Plaintiff was injured by defendant's train while crossing its tracks at a street crossing, where there were ''four several trades, about 10 or 15 feet apart. A freight train was moving south on what plaintiff thought was the most easterly track, the one nearest to him, in which case it would be useless to look south for an approaching train. .He watched the passing train, look- ing to the north to discover when it would uncover the side- walk upon which he was traveling. This train was in fact on the track next westi of the east tr'ack, and the plaintiff stepped between the rails of the east track.,' waiting for the train to pass, without knowing he was on the east track. While standing there, he was struck by a yard engine, coming from the south on the east track, and injured. Held, question of contributory negligence was for the jury. Regan v. Chicago, M. & St. P. R. Co., 85 Wis., 43. §137. Test as to whether question is, for jury. "What would a man exercising ordinary prudence have done under like circumstances, and with like knowledge, -at that time? If he would or might have done what the intestate did, then the act was not contributory negligence. This question was for the jury.'' Kelleher v. Milwaukee «& N. R. Co., 89 Wis., 584. 3 33 §138-140 CONTRIBUTORY NEGLIGENCE. §138. Sidewalk crossing — ^failure to see cars. The deceased, when last seen alive, was walking towards the east, besides a switch in defendant's yard, going toward a street which crossed through such yard north and south. The day was very cold, deceased had a shawl wrapped round his ears, and the switching employees remained on the engine when not throwing a switch. He had been passed by five cars going west on one track, and was killed by three of the cars being switched back to the east unattended. His dead body was found about 15 feet east of the sidewalk, blood being fot^nd near the sidewalk to the east, and none to the west. Held, sufficient to sustain the finding that he was on the sidewalk, as he had a right to be, when struck by the cars, and that he was not guilty of contributory negligence in not seeing the cars approach. Phillips V. Milwaukee & N. R. Co., 77 Wis., 349. §139. Same — obstrncted view. The plaintiff, while carrying a basket and a bundle, was struck by defendant's locomotive at a sidewalk crossing in a thickly settled portion of a city, and near its business center. Before reaching the crossing, which was all planked level with the top of the rail, the road curves sharply, intersecting the crossing at an acute angle. The evidence showed the plaintiff was not familiar with the locality, and that trees and telegraph poles obstructed the view of the track to some extent; and that because of the curve in the track, the light from the locomotive headlight did not fall directly on her until it was very near the crossing. One finding in the special verdict was that plaintiff could have seen the headlight if she had looked before going on the crossing. Held, that notwithstanding thi^ finding, her negligence was still a question for the jury, as they might deem the circumstances would take the case out of the usual rule requiring a person approaching a track to look and listen. Winchell v. Abbot, 77 Wis., 371. §140. Cold weather — obstructed hearing— high wind. In an action against a railway company for injuries received at a highway crossing, the evidence showed that plaintiff was familiar with the locality; that it was a clear, cold winter morn- ing, and plaintiff had his face and ears wrapped up to keep them from freezing, which must have interfered with his hearing, and the wind was blowing in the direction of the coming train. He 34 AT HIGHWAY CROSSINGS. §141-143 stopped at the top of the hill, and looked and listened, but could neither see nor hear the train. He then drove slowly down the hill, and when half a rod from the track, on a steep down pitch caused by sn'^w thrown ort of the track, he first heard the whistle blow, but could not stop the heavily loaded team in time to prevent the collision. The court erred in tak- ing the question of contributory negligence from the jury, and directing verdict for defendant. Siegel v. Milwaukee & N. R. Co., 79 Wis., 404. c. At highway crossings — questions for court. §141. Attempting to cross in front of train. In an action for killing of plaintiffs intestate by defendant's trains, while attempting to cross two adjacent tracks, it appears deceased knew that two trains were running side by side, over the two roads, and by the exercise of due care on her part, must have known they were running at a much greater rate of speed than usual; that she paused for a moment near the tracks, as if to consider whether she might safely proceed or not. She proceeded, and the fatal result showed the recklessness of her conduct. People who take such risks must suffer the consequences of their own want of care or errors of judgment. I^anghoflf V. Milwaukee & P. du C. R. Co., 33 Wis., 43. §142. Same. Plaintiff drovei his team to within 13 or 18 feet of the rail- road track, when he descended from his wagon, left his team, and went across the track to the depot platform and helped unload another wagon ahead of him. No regular train was due, but he soon heard some one say, "A train is coming,'' and he immediately jumped to catch his team. An engine was rapidly passing the depot, and as plaintifif jumped from the platform, he landed on the front part of the engine, and was thrown some distance, sustaining severe injuries. He had jumped first upon a lower platform from which he could have seen the engine had he looked. He testified that he neither' saw nor heard anything. Held, he was guilty of contributory nec,ligence. Olson v. Chicago, M. & St. P. R. Co., 81 Wis., 41. §14.3. Gates at highway crossing — assumption of risk. The presence of a gate across the approach to the railway track is a specific notice to the traveler that the danger of going 35 §144-146 CONTRIBUTORY NEGLIGENCE. upon the right of way is immediate, and that no person of ordinary care should assume it without expecting to take all the ri'si^-s upon himself of what may result, so far as relates to his personal safety. Douglas v. Chicago, M. & St. P. R. Co., 100 Wis., 405. §144. Same — custom — ordinary care. What persons customarily do under similar circumstances is usually the test of ordinary care, but to that is the familiar exception that where the doing of an act is so obviously danger- ous as to constitute negHgence as a matter of law, as going upon railway tracks, or walking upon the tracks without look- ing or listening, or persons, not employees of a railway com- pany, jumping on and off from moving cars, or the doing of any other of the many things that might be mentioned that are dangerous in themselves, it is inconsistent with ordinary care, regardless of custom. Ray v. Lake Superior T. R. Co., 99 Wis., 617. §145. Death at highway crossing. The deceased, a minor, and his uncle, a man of mature years, were approaching a railroad crossing through a private lane, which was much used by the public, seated upon fee running gear of a wagon and driving on a slow walk. Their faces were turned in a direction opposite that from which a train might be expected. They were familiar with the locality and the surroundings, and as they were crossing the railroad they were struck by the locomotive of a train which was a little late, and which was moving at an unlawful rate of speed. If they had looked they could have observed the train coming at a distance of 94 rods. The driver was guilty of contributory negligence and a non-suit was properly directed. Vant v. Chi- cago & N. W. R. Co., 101 Wis., 363. §146. Unlawful speed. Plaintiff's intestate, accompanied by his little son, 7 years old, was driving a well-broken horse in an open buggy one damp and foggy evening, and when crossing a railway track, the buggy was struck by a train running 60 miles an hour, and both occupants instantly killed. The accident was not seen by any one, but at the place where the accident occurred the speed of trains was limited by law to 15 miles an hour. It affirmatively appeared that the deceased approached the cross- 36 AT HIGHWAY CROSSINGS. §147-149 ing, with which he was perfectly familiar, at a very moderate gait, and that for a distance of 500 feet before reaching the crossing he could have a full view of the headlight of any engine approaching for three-quarters of a mile. While deceased had the right to act upon the assumption that the train would not be moving at a greater speed than 15 miles a.n hour, the facts demonstrate that either he was not looking at all, or that he deliberately, or, with ffis horse under full control, took the risk, and was therefore guilty of contributory negligence. Groesbeck v. Chicago, M. & St. P. R. Co., 93 Wis., 505. §147. Same. Although Chapter 467 of the Laws of 1891 makes railway corporations running their trains at an excessive rate of speed in cities to be liable to persons injured for damages caused thereby, such liability is not absolute, but may be defeated by the contributory negligence of the person injured. Schneider v./ Chicago, M. & St.' P. R. Co., 99 Wis., 378. §148. Same — momentary diversion. The evidence showed that the plaintiff when about 50 or 60 feet from the right of way, looked and listened for an approach- ing train, but saw no sign of any, although he could have seen it if within 900 feet; that he then started slowly forward, but his attention was so diverted by the conduct of his- horses that he did not look again until -so near the crossing that a collision could not be avoided; that no warning was given of the approaching train, which came at a rate exceeding 36 miles^an hour; had the train been running at the statutory rate of 6 miles an hour and the other conditions been the same, the plain- tif5f would have safely crossed the track some time before the train reached it. Held, plaintiff cannot be held guilty of con- tributory negligence as a matter of law. Piper v.' Chicago, M. & St. P. R. Co., 77 Wis., 247. §149. Walking on tracks. Plaintiff attempted to walk across or along the main track of a railroad and there was nothing tO' obstruct his view of the track or divert his attention, but he failed to look for approach-^ ing trains and was struck and injured by a passing locomotive which was not going at an undue rate of speed and no statute required the engineer to souii3 a signal. The engineer saw plaintiff approach the track with the apparent intention of cross- 37 §150-153 CONTRIBUTORY NEGLIGENCE. ' ing, for which there was ample time, but plaintiff started to walk along the track between the rails. When the engineer realized plaintiff's intention he gave an alarm, but it was too late. Held, that the engineer had the right to assume that plaintiff would cross the track and that he knew the locomotive was approaching; and a verdict to the effect that the exercise of reasonable care by the engineer might have avoided the con- sequences of plaintiff's negligence, is unwarranted. Schmolze V. Chicago, M. & St. P. R. Co., 83 Wis., 659; Valin v. Mil- waukee & N. R. Co., 83 Wis., 1, distinguished. §150. Duty to look and listen. A person crossing the main track of a railroad must take notice that trains are liable to be passing at any time and must listen and look for them if he' would fulfill the requirements of ordinary care. If he knows that a train is due there at the time, it intensifies his negligence if he fails to listen and look for it and he is still guilty of the want of ordinary care if he fails to do so, although he does not expect a train at that time. Schmolze v. Chicago, M. & St. P. R. Co., 83 Wis., 659. §151. Same. The rule is inflexible that a party approaching a railroad track, intending to cross it, is bound to both look and listen, and a failure to do so is negligence, which prevents his recov- ering damages in case of injury caused by a passing train. Lenz V. Whitcomb, 96 Wis., 310. §152. Same. A person approaching a railroad crossing on which he knows a train is about due, in a closed vehicle, filled with a number of articles making a noise while being carried, the rear of the vehicle' being in the direction from which the train is expected, and at a sharp angle with the road, and who does not stop to look for the train after coming nearer than 80 feet to the track, and while 'at a distance of 60 feet from the track, he might have seen it more than 100 rods away, is guilty of contributory negligence, prevegting a recovery for injuries caused by a collison at such crossing. Schneider v. Chicago, M. & St. P. R. Co., 99 Wis., 378. §153. Duty to stop and look or listen. If the view of a traveler on the highway approaching a rail- way crossing is so obstructed that he cannot gee an approach- 38 AT HIGHWAY CROSSINGS. §154-156 ing train in time to stop his team before colliding with it, if he knows that a train is due at such crossing at or about such time, and if he is unable to hear the approaching train when his team is in motion, whether by reason of the force and direc- tion of the wind or of noises in the ^vicinity, whether made by bis own wagon or by other causes, ordinary care requires him to stop his team while he may do so, and listen for the train. Seefeld v. Chicago, M. & St. P. R. Co., 70 Wis., 316. §154. Same. It is the duty of the traveler on a highway crossed by a railroad track, if he approaches the crossing when a moving train in close proximity thereto is also approaching it, to wait for the train before he crosses the track, and his failure to do so is negligence. Dullea v. Chicago & N. W.,R. Co., 86 Wis., 173; Brunette v. Chicago & N. W. R. Co., 86 Wis., 197. §155. Same. Plaintiff was traveling on a highway towards the railroad,' and when passing over a bridge on such highway, and 53 feet from the end of the bridge and 175 feet from the railway track, he saw a train approaching at a high rate of speed the crossing in front of him, 55 rods distant therefrom. He drove his horse on a walk to the end of the bridge, pursuant to a notice thereon, and when at the end of the bridge, drove to the crossing as fast as he could, when the engine struck his buggy, and he was injured. It was his duty to either stop his horse, or turn down the side road which intersected that on which he was traveling. Held, guilty of contributory negligence, and the rule dispens- ing with accuracy of judgment. in the presence of imminent peril had no application. Dullea v. Chicago & N. W. R. Co., 86 Wis., 173. §156. Failure to look or listen. Plaintiff, who was 23 years old, a teamster 'by trade, and who knew the surroundings thoroughly, was injured by defendant's construction train, which he knew was running at all times, as he was about to cross defendant's tracks at a highway crossing. He had looked to see if there was a train as he approached the track, but stopped for a minute or so behind a store about 30 feet from the track, where his view was entirely cut off, and then drove toward the track without looking until his horses' heads were within five feet of the track. Held, guilty of con- 39 §157" I 59 CONTRIBUTORY NEGLIGENCE. tributory negligence. To justify a man in driving out from behind a building thirty feet distant from a railroad track towards the track, wiaere he knows trains may be expected at any time, without attempting to use his eyes, there certainly must be some substantial evidence that such attempt would be futile. Nelson V. Duluth, S. S. & A. R. Co., 88 Wis., 392. §157. Same. The duty is absolute to look and listen before going upon either a steam railroad track or an electric street-railway track, and to see and hear an approaching car, if within plain view and hearing to a person exercising his senses of hearing and seeing with ordinary prudence to detect it, having regard for the dangers reasonably to be apprehended, and that failure to perform that duty, or, after performing it, to keep out of the region of danger, is negligence per se; that this is not a mere rule of evidence which a jury may be permitted to consider, but a rule of law to be applied by the court when the facts are undisputed, and by the jury under the direction of the court when the facts are disputed. Cawley v. La Crosse City R. Co., 101 Wis., 145. §158. Same. One who drives on a dark night on an unfamiliar road, through a country traversed by several railroads, one of which he had to cross several times before reaching his destination, and who "jogged along without paying any attention to any- thing, except to, see that the horse was in the road," and who heard nothing, although the wind was favorable for carrying the noise of the train, and who saw nothing, although the head- light was visible at a considerable distance, and almost directly ki his face, and who was struck by ' the locomotive at the highway crossing, is guilty of contributory negligence, although he did not know there was a railroad crossing at the place of the accident. Steinhofel v. Chicago, M. & St. P. R. Co., 92 Wis., 133. §159. Same. Plaintiff was injured on defendant's track, at a street cross- ing by moving cars from' which the engine had been detached. He was standing near the track, talking to a section man, when the engine passed going east, and he then looked west along the track but did not see the cars following it. After 40 AT HIGHWAY CROSSINGS. §l6o-l62' some further conversation he started to cross the track from a point about fifteen feet distant, without again looking to the west. Had he looked he would have seen the cars coming. There was nothing to obstruct his view of them or to divert his attention as he approached the track. Held, that he was guilty of contributory negligence. Schlimgen v. Chicago, M. & St P. R. Co., 90 Wis., 186. §160. Same. Plaintiff's servant, driving a team of plaintiff's horses, approached a dangerous railroad crossing, and was prevented by brush from seeing an approaching train.' He was cognizant of the dangerous character of the crossing, but just as he was about to cross the track, he lay down the lines, left his team to follow, went forward and took a seat upon a sleigh in front of him, with his ears mufifled and his back turned to the most dangerous approach, and the plaintiff's horses, just as they were co.ming on the track, were struck by defendant's train, running at an unlawful rate of speed. Held, guilty of contributory neg- ligence. Gu'nn V. Wis. & Minn. R. Co., 70 Wis., 203. §161. Same. Plaintiff attempted to walk across or along the main track of a railroad. There was nothing to obstruct his view or divert his attention from the conditions surrounding him, but he failed to look for approaching trains and was struck and injured by a passing locomotive. Held, he was guilty of contributory neg- .ligence, preventing a recovery, although he did not expect a train and no regular train was due there at that time. Schmoltze V. Chicago, ,M. & St. P. R. Co., 83 Wis., 659. §162. Same. Plaintiff's intestate started to cross defendant's track a short distance in front of an engine and was killed. If he had looked before attempting to cross he could have seen the engine approaching. He was therefore guilty of such contributory negligence as to prevent a recovery. Hansen v. Chicago, M. & St. P. R. Co., 83 Wis., 631; Rothe v. Milwaukee & St. P. R. Co., 31 Wis., 256; Delaney v. Milwaukee & St. P. R. Co., 33 Wis., 67; Williams v. Chicago, M. & St. P. R. Co., 64 Wis., 1; Seefeld v. Chicago, M. & St. P. R. Co., 70 Wis., 216; Schilling V. Chicago, M. & St. P. R. Co., 71 Wis., 255; Schoenfeld v. Milwaukee C. R. Co., 74 Wis., 433. 41 §163-166 CONTRIBUTORY NEGLIGENCE. §163. Same. I Deceased was killed while crossing defendant's tracks at a point where, for a long time, people had been crossing in large numbers daily without objection by defendant. The place was in constant use by the company as part of its switching yards and there were generally several trains on the tracks completely blocking the crossing, but the people were accustomed to crawl under, through or between the cars. The deceased, who was familiar with the crossing, was attempting to pass through a narrow opening between cars standing on the crossing and was crushed by their coming together. If she had looked she could have seen the cars by the impact of which the opening was closed, coming down the track. Beyond the opening the way was blocked by several solid trains and there was nothing to indicate that the opening was left to allow people to pass through it. It was held, unnecessary to decide whether the crossing was a legal highway or not^ as the deceased was guilty of con- tributory negligence, preventing a recovery. Flynn v. Eastern R. Co. of Minnesota, 83 Wis., 238. §164. Same. Plaintiff, a man eighty years old, blind of one eye and with dull hearing, was driving along a street leading to a railroad crossing, and saw two trains passing along in the same direc- tion. After waiting ■ until the second train had passed, and without looking or listening for other trains, he drove upon the track, and was injured by a third train coming from the same direction, which he would have seen had he looked. Held, guilty of contributory negligence. McKinney v. Chicago & N. W. R. Co., 87 Wis., 382. §165. Same. Plaintiff's intestate was killed at ■a highway crossing by defendant's train, while he was attempting to drive across it at ■ night. At any place within 100 feet of the track he could have seen the headlight on the locomotive of the approaching train, and had he listened, he could have heard its sound, the wind coming from the direction of the train. He was therefore guilty of contributory negligence, and the fact that the train was five minutes late did not absolve him from the duty to look or listen. Haetsch v. Chicago & N.,W. R. Co., 87 Wis., 304. §166. Same. Plaintiff stepped in front of a moving locomotive on the 42 AT HIGHWAY CROSSINGS, ^l6y-l6g track at a highway crossing, and could have seen it approaching had he looked in that direction. Although defendant was guilty of negligence in not causing warning of the approach of the locomotive to be given, and although plaintiff had seen the locomotive at a distance of 200 feet standing still but a few moments before, he was not absolved from the duty to look, and he was held guilty of contributory negligence; and' the fact that he was giving instructions to an assistant regarding the loading of stock, and was looking in the direction opposite that from which the locomotive came, and in the direction from which the train would approach, was not an excusable diversion on his part. Nolan v. Milwaukee, L. S. & W. R. Co., 91 Wis., 16. §167. Same. Plaintiff was driving a gentle horse along a high\<'ay which intersected the railway at an angle of thirty degrees. At any place on the highway for a distance of 500 feet from the cross- ing:, a train approaching on the railroad could be seen for nine- tenths of a mile. When about 300 feet from crossing, plain- tiff stopped his horse, looked and listened, and then proceeded on his way, without further precaution, and his horse was struck at the crossing by a passing train. The contributory negligence of plaintiff was plain, and precluded recovery. Lenz v. Whit- comb, 96 Wis., 310. §168. Same. In an action against a railway company for injuries received at a highway crossing, where the track in the direction from which the train was approaching could not be seen until plain- tiff's horses were on the track, the law did not impose upon the plaintiff the duty of stopping his team, getting down from his wagon, and going on or near the track on foot to look for the -train; and there being testimony to show no bell was rung or whistle sounded ; his not doing so is no evidence of contributory negligence. Rothe v. Milwaukee & St. P. R. Co., 31 Wis., 356, distinguished; Duffy v. Chicago & N. W. R. Co., 33 Wis., 269. NOTE — In above case the defective orossing was the work ol the defendant, which had not restored the highway "to Its former usefulness," as required by law. §169. Failure to give signals. Where one approaching a railroad crossing on a highway could, by the exercise of ordinary vigilance, have stopped his team in time to avoid the injury, the failure tO' blow the whistle 43 §170-172 CONTRIBUTORY NEGLIGENCE, and ring the bell before crossing the highway, as required by statute, will not make the railroad company liable. Williams v. Chicago, M. & St. P. R. Co., 64 Wis., 1. §170. Same. Plaintiff's team, driven by his hired man, was approaching a railroad crossing. In the wagon were two men^ with their backs towards the driver. When about 35 rods from the cross- ing, one of the men got off, and walked about 5 rods towards the crossing, and saw the engine coming at a distance of about 45 rods from the crossing. For 18 rods from such crossing there was nothing to obstruct the view except a deep cut through which the track ran, which was about 10 feet deep in the deep- est place, and sloped each way for about 60 feet, and therefrom was only' 6 or 7 feet deep, and wholly disappeared several rods from the crossing. From the place where the man got off, the driver walked his team to the crossing, an,d for a considerable portion of the 30 rods to the crossing, could have seen a com- ing train within 30 rods thereof, and for practically the entire distance, could have seen the locomotive stack had he looked. Without looking, he drove his horses until they were nearly on the track, and the engine close on the cattle guard. The horses were a quiet team and would have stopped had the driver said "whoa." No bell was rung or whistle blown, and the train was running unusually fast, but the facts prove conclusively the driver was guilty of contributory negligence. Ibid. d. Cases against municipal corporations. §171. Child rolling hoop on sidewalk. The fact that a child on her way to meet playmates was run- ning slowly along the sidewalk rolling a hoop, is not inconsistent with her being at the same time a traveler on the sidewalk, where the playing with her hoop did not divert her from going straight on towards her destination. The rolling of the hoop before her was not negligence per se. Reed v. City of Madison, 83 Wis., 171. §172. Riding on nnanchored wagon seat. The court will not hold as a matter of law, that it is contribu- tory negligence to ride in a wagon upon a seat not anchored thereto, but it is a question for the jury. Jennings v. Town of Albion, 90 Wis., 23. 44 MUNICIPAL CORPORATION CASES. §173-178 §173. Wagon seats claimed improperly attached. In an action against a town for injuries from a defective highway, where the only contributory negligence claimed by defendant was in the use of a wagon with its seats attached in a certain manner, there being evidence tending to show that the wagon was one of a kind in common use, and that the seats were put in and fastened in the manner usual in wagons of, that class, a non-suit was properly refused, and the question of plain- tifif's negligence left to the jury. Hammond v. Town of Mukwa, 40 Wis., 35. §174. Driving six miles an hour at night. A person driving over a highway in the night time at the rate of five or six miles an hour, without knowledge of obstruc- tion or defect therein, is not gfuilty of contributory negligence. Bills V. Town of Kaukauna, 94 Wis., 310. §175. Care in driving. It is not negligence per se for a driver to lie down upon his load, wrapped in blankets, but is a question for the jury. Parish V. Town of Eden, 62 Wi";., 372. §176. Driving in dark night over obstructed road. Where the alleged insufficiency consisted of a sha:^ descent at the intersection of two roads, and a gully in the track at that point, with the highway obstructed by logs on both sides bf the road, over which plaintiff's intestate drove on a dark night, thus causing the accident, the question of contributory negligence was properly for the jury. Slivitski v. Town of Wien, 93 Wis., 460. ^177. Riding on loose hay in wagon. In an action against a town for injuries received by plain- tifif being thrown from his wagon, it appeared that he was seated upon an unbound, loose lot of hay, on the hind end of the wagon, on his knees, his face looking behind the wagon. In going down hill, the wagon struck a large rock in the road (which plaintifif had seen there before), and threw him to the ground, causing the injuries complained of. Held, guilty of contributory negligence. Nicks v. Town of Marshall, 24 Wis., 139. §178. Riding on loaded hay wagon — snow on bridge. Plaintifif was riding on a load of hay which had tipped over in driving out of the field, and in attempting to cross a bridge 45 § I 79^1 82 CONTRIBUTORY NEGLIGENCE. where the traveled track was close to one side of the bridge, by reason of an accumulation of snow^ the rack caught a projecting prong of a forked post which held the railing or barrier, and stopped the team. PlaintifiE's companion then got down from the load, and cut off the post as, far as he dared (the stake hold- ing the load) and then got upon the load again, took hold of one of the levers inserted under the binding pole and tried to hold the load so it would not go over. Plaintiff then started up the team, and the load went over the bridge, into the gully, and she was thrown and badly hurt. Held, plaintiff must have known and appreciated the risk she assumed in remaining on the load, and attempting to drive off the bridge and out of the difficult situation, and was guilty of contributory negligence as a matter of law. Fisher v. Town of Franklin, 89 Wis., 42. §179. Momentary diversion. The fact that plaintiff, at the moment of striking her foot against a displaced plank, had allowed her attention to be attracted from the sidewalk to a horse running away upon the street, is not such evidence of contributory negligence as to require the question to be submitted to the jury. Weisenberg V. City of Appleton, 26 Wis., 56. §180. Same. Plaintiff, a woman 53 years of age, fell on a dangerous ridge of ice on a sidewalk, and was injured. She knew of the existence of such ridge, and had passed over it an hour before, but, on approa,ching it the last time, there were many workmen quitting the shops at the ringing of the 5 o'clock bell, and she being timid and nervous, hurried on so as not to meet them. As she came to the corner, she looked up to see the men coming, and not thinking of the ice, she slipped and fell, her attention being diverted from the walk. Held, question of contributory neg- ligence was for the jury. Cumiskey v. City of Kenosha, 87 Wis., 286. §181. Same. The momentary diversion of a person's attention when near the point of danger is not contributory negligence as a matter of law. West v. City of Eau Claire, 89 Wis., 31. §182. Same — excavation in walk. Although the plaintiff fell into an excavation in a sidewalk in broad daylight, her attention may have been temporarily 46 MUNICIPAL CORPORATION CASES. § I 8 3 - 1 8 6 diverted^ and the court cannot say she was conclusively guilty of contributory negligence, but such question was for the jury. Cantwell v. City of Appleton, 71 Wis., 463. §183. Absence of barriers — ^inclined walk — contributory negligence. The testimony showing a sidewalk to have been about four feet wide, and a part of the same consisting df four or five 8-inch steps, with no railing on either side, at the place where plaintiff fell on a dark night, the street lamp giving but a dim light, the questions of the negligence of the defendant and the contributory negligence of the plaintiff were properly for the jury. Gutkind V. City of Elroy, 97 Wis., 649. §184. Same Plaintiff's evidence tended to prove that he was driving his team along the highway at a slow walk, having his boys in the wagon with him; that when the wheel of the wagon struck the stump and caused the injuries complained of, he was holding the reins with one hand, and with the other assisting his boys to a seat; and that in doing so his attention was diverted for a few minutes from his team and from the highway. Held, that the court did not err in refusing to non-suit the plaintiff, nor in charging that his testimony tended to show that when injured he was in the exercise of ordinary care and diligence. Cremer V. Town of Portland, 36 Wis., 93. §185. Intoxication. In an action against a village for a defective walk, the jury found that the sidewalk was in such a condition that a person using ordinary care and prudence could walk over the same without danger of falling down. There was the testimony of 9 different witnesses that the plaintiff was intoxicated at the time, which is sufficient to sustain another finding that the plaintiff's intoxication contributed to his injury. McGracken v. Village of Markesan, 76 Wis., 499. §186. Defective sidewalk — open hatchway. Plaintiff fell into an open hatchway in the sidewalk in broad daylight, when he might have seen that the door was open, if he had been looking before him; but his testimony explained the circumstances which induced him to look in another direction. Held, no such proof of cofitributory negligence as would justify 47 §187-190 CONTRIBUTORY NEGLIGENCE. a non-suit on that ground. Barstow v. City of Berlin, 34 Wis., 357. NOTE— Dixon, C, J., In his opinion in tMs case, criticizes Aclitenhagen V. Watertown as to contributory negligence, pp. 362, 363. §187. Same — snow aiid ice. Plaintiff was injured while on an approach to a bridge in defendant city. The approach was a plank walk, having a descent of about two and a half feet in twenty, with strips nailed across said walk at intervals of a foot, but they were entirely cov- ered with snow and ice, and the whole surface of the walk smooth and slippery. Plaintiff had been on the walk frequently, and knew of its inclined position, but there was no evidence tending to show he knew of its slippery and dangerous condition at the time. Held, question of plaintiff's negligence was properly left to the jury. Perkins v. City of Fond du Lac, 34 Wis., 435. NOTE — ^Achtenhagen v. Watertawn, mentioned as going to the limit on the question of contributory negTlgence. P. 440. §188. Same — same. Plaintiff, while walking in a snowstorm, was accosted by a friend, and his attention diverted, so that he slipped and fell upon a hummock of ice which was covered over by the snow. Under such circumstances, it cannot be said, as a matter of law, that the plaintiff was guilty of negligence in not seeing and avoiding the ice Kenyon v. City of Mondovi, 98 Wis., 50. §189. Same — knowledge of defect. In an action agkinst a city for personal injuries caused by a defective sidewalk, it appeared that the plaintiff knew of the defect about a year ago previous to the accident, and avoided it every time he thought of it; that he deemed it a dangerous place, and it ought to be avoided; that he noticed it. two or three times a day ; that the day of the accident he was near the place, walking along towards home, "not just thinking," when he saw an acquaintance on the other side of the street, and whom he accosted, when a hasty colloquy occurred, during which he looked at his acquaintance, walking along perhaps 10 or 15 steps, when he stepped in the hole, and received injuries. Held, it was properly left to the jury to determine whether plaintiff was guilty of contributory negligence. Crite? v. City of New Richmond, 98 Wis., 55. §190. Knowledge of defect. Plaintiff was riding along the highway on horseback about 48 MUNICIPAL CORPORATION CASES. § 1 9 1 - 1 9 5 dusk, and when within thirty rods of a sluiceway, a dog sprang suddenly out of a yard and ran with the horse half way to the culvert. After the dog stopped plaintifif got control of his horse and pulled him down to a canter, when in crossing the culvert, one of the fore feet of the horse went into a hole in the plank, throwing plaintiff violently to the ground, causing the injuries complained of. Plaintiff knew of the hole from having seen it 12 days before, but did not notice or think of it the day of the jccident. The question of contributory negligence was prop- »rly for the jury. Brennan v. Town of Friendship, 67 Wis., 323. §191. Same. The fact that a traveler saw an obstruction or other defect In a highway, and knew its dangerous character, is not con- clusive proof that he \^as guilty of negligence in attempting to pass it. It is, in general, a question for the jury, upon the evidence, whether it was consistent with reasonable care for him to attempt to proceed. Kelley v. Town of Fond du Lac, 31 Wis., 170. I ■ i §192. Same. Where a person injured by a defective walk knew there may have been some risk of injury in passing over it, and might easily have passed around it, these facts alone do not entitle the defendant to a verdict, but it is a question for the jury whether she was guilty of negligence in passing over the defective walk. McKeigue v. City of Janesville, 68 Wis., 50. • §193. Same. Plaintiff was injured by a fall on a sidewalk, only about half of which had ice covering it. He had passed the place several times, knew the ice was there, and was walking along on the ice part without anything to divert his attention. Held, guilty of contributory negligence. Hausman v. City of Madison, 85 Wis., 187. §194. Same. The fact that a person drove over a highway at a certain place with knowledge that it was dangerous, is not conclusive, in law, that he was negligent; but the question is for the jury, in view of all the facts in evidence. Kelly v. City of Fond du Lac, 31 Wis., 179; Kenworthy v. Town of Ironton, 41 Wis., 647. §195. Same. A person is not necessarily guilty of contributory negligence 4 49 §196-200 CONTRIBUTORY NEGLIGENCE. because he drives upon a bridge which he knows to be defective. It is a question for the jury. Cuthbert v. City of Appleton, 24 . Wis., 383; Wheeler v. Town of Westport, 30 Wis., 393; Spear- bracker v. Town of Larrabee, 64 Wis., 573. §196. Same — presumption of law. There is no presumption of law that a person is guilty of contributory negligence, from the mere fact that he was injured in passing frequently over a highway that he knew was out of repair, but the question of negligence is for the jury. Kava- naugh V. City of Janesville, 34 Wis., 618. §197. Same. Plaintiff's general acquaintance with the obstruction caus- ing the injury will not necessarily prevent his recovery, if, under the circumstances, he might still, in the exercise of ordinary pru- dence, have been unaware of his proximity to it. Wheeler v. Town of Westport, 30 Wis., 392. §198. Same. One may, without imputation of negligence, attempt, in the exercise of due care, to pass over a place of known danger. And where one passes over a dangerous, icy place on a sidewalk, it is for the jury to determine whether due care has been observed, i'nd whether the attempt itself is negligence. Salzer v. City of Milwaukee, 97 Wis., 471. §199. Same. One who receives an injury while driving on a city street by reason of a defect therein, which he had seen a week before, but did not see on the day of the accident until too late to stop his horses, was not guilty of contributory negligence as a mat- ter of law merely because of such previous knowledge. Simonds V. City of Baraboo, 93 Wis., 40. §200. _ Presumption of negligence on part of deceased. In an action against a municipal corporation for damages arising by reason of its alleged negligence in leaving a bridge in such condition that the plaintiiif's son fell through and was drowned, it appearing from the plaintiff's evidence that deceased was ] 3 years old, that he was familiar with the bridge and knew of the hole in it and that the accident occurred in the day time and he had passed over the bridge a short time before on the same day. Held, that these facts raised such a presumptioh 50 MUNICIPAL CORPORATION CASES, §2OJ-203 of negligence on the part of deceased that plaintifif was bound by the proper proof to negative that presumption, and having failed to do so he was properly non-suited. Achtenhagen v. City of Watertown, 18 Wis., 331. See also note to this case. §201. Submerged highways — ^washouts. In an action for jiersonal injuries yvhile driving on a high- way, it appeared that the road, at the place of the injury, had been submerged for several days, and that the city authorities had placed no barriers or warning signals there. The line of the road was clearly indicated by a fence along the land side, which had not been washed away, and it was known to the plain- tiff that a team and wagon had just passed over the submerged way in safety, and there was no evidence that there was a rapid current of water in the highway. The question of contributory negligence was held to be of fact for jury and not of law for the court. Jung v. City of Stevens Point, 74 Wis., 547. §202. Same — broken spring. In an action for personal injuries caused by a defective high- way, plaintifif was traveling over the road when it was covered with water after a heavy rain, in a wagon in which were three other grown persons and three children. The wagon had a spring broken, causing the co^rner of the box where plaintifif was seated to drop from 4 to 6 inches lower than the rest. The wagon went suddenly into a deep hole, and plaintifif, with the rear seat on which she was riding, was thrown out and injured. Held, question of contributory negligence was for the jury. Luedke v. Town of Mukwa, 90 Wis., 57. §203. Same. A ditch or washout occurred in a public highway in the track originally traveled, and the travel passed on both sides thereof, and there were no barriers to warn travelers of the ditch. The plaintiff was driving his team along the highway on a dark night, and after he had passed the point where the tracks diverged, he so reined his team as to attempt to go on the track he deemed safest. He could not see the ditch, and although familiar with the road, he supposed he was 6 or 8 rods distant from the ditch, but mistook his position and was thrown from the wagon. The evidence was conclusive that the highway was defective, and the question of plaintiff's contributory negligence was properly sub- mitted to the jury. Hart v. Town of Red Cedar, 63 Wis., 634. 51 §204-207 CONTRIBUTORY NEGLIGENCE. §204. Insufficiency of highway — question for jury. In an action for injuries alleged to have been received by plaintiff's decedent in consequence of the insufficiency of the highway, causing death, where the questions of the sufficiency of the highway and the contributory negligence of deceased, requiring the determination of several questions of fact, as to which there was conflicting evidence, the issues were, properly left to the jury. Houfe v. Fulton, 29 Wis., 296, and Wheeler v. Westport, 30 Wis., 392, approved and followed. Burns v. Town of Elba, 32 Wis., 605. §205. Same — highway too narrow for teams to pass. Where the highway at the place of injury was so narrow and hedged in by an embankment on one side and a fence on the other that two teams could not safely pass each other, and its condition was such for a long distance, and plaintiff, in attempt- ing to pass another team at such place, in the most prudent man- ner, suffered the injuries complained of, and the team approach- ing him could not be seen until very near such place, the plain- tiff is not guilty of contributory negligence, and the defendant was guilty of great negligence in allowing the highway to remain in such condition for a long time. Fopper v. Town of Wheat- land, 59 Wis., 623. §206. Drowning horses — deviation from road. Where the driver of a team left the highway without any necessity, deviated from the line of a highway because it was covered from 4 to 8 inches with water and ice, and perfectly safe and knowingly turned into, and attempted to ford a creek in which considerable current was then visible, and which, though safe in ordinary times, was then in a state of freshet, and the horses were drowned, he is guilty of contributory negligence, and the town is not liable. Welsh v. Town of Argyle, 89 Wis., 649. §207. Contributory negligence of father. Where the evidence shows that a boy upwards of eleven years of age was diving a gentle team hauling a load of zinc ore along a country road in the night time, having with him a brother, the intestate, about two years younger, and they were both killed by the overturning of the wagon caused by a defec- tive condition of the road, and the load being thrown on top of them, the questions as to the contributory negligence of the 52 MUNICIPAL CORPORATION CASES. §208-2II father, the plaintiff in the action, and of the older brother, were properly submitted to the jury. Parish v. Town of Eden, 6^ Wis., 272. §208. Plaintiff engaged in unlawful act — Sunday. The fact that plaintiff, at the time lie suffered injui-ies to his person or property from the negligence of defendant, was doing some unlawful act, will not prevent a recovery, unless the act was of such a character as would naturally tend to produce the injury. So held, in a case where plaintiff was driving his cattle to market on Sunday, in violation of the statute, when they were injured by the breaking of a defective bridge, which the town was bound to maintain. Sutton v. Town .Wauwatosa, 29 Wis., 21. §209. Walking outside traveled track. Plaintiff was knowingly walking on the grass outside of the traveled track, within a foot or eighteen inches thereof, and had been so walking for some distance before encountering the sharp angle of the line of boulders aforesaid, over which he stumbled and was injured. He lived on the road, about a half mile dis- tant, and was familiar with it and with the situation of the boul- ders. It was a rather dark night; the boulders were not visible;' the traveled track was wet and sticky. He was a physician, and had been called' out to visit a sick person, and was walking close by the side of, and conversing with the messenger who came for him, who was walking on the track leading a horse; arid he tes- tified that he was not thinking of these stones when he came upon them. Upon these facts the court did not err (as against the town) in submitting to the jury the question of contributory negligence. Wheeler v. Town of Westport,, 30 Wis., 392. §210. Defective bridge — conflicting evidence. Where there was conflicting evidence as to the question whether it was negligence in the town to leave the bridge un- protected by piles, the matter was properly left to the jury. Castello V. Laodwehr, 28 Wis., 522. §211. Same — question for jury. In an action against a town for personal injuries caused by a defective bridge, the proofs showed that the bridge on which the plaintiff's horses were injured had been in existence for a great many years; that the town had expended money at dif- ferent times on the highway leading to it; that it was old; the 53 §212-215 CONTRIBUTORY NEGLIGENCE. Stringers were rotten, and that plaintiff's wagon broke through while passing over it. Whether, under the circumstances, it was prudent for the plaintiff's servant to pass over with the load he had on- the wagon, or not, was a question for the jury. Grimm v. Town of Washburn, 100' Wis., 229. §212. Same — driving cattle on. The question of whether the plaintiff was guilty of contribu- tory negligence in driving so many cattle upon the bridge at one time, should be left to the jury, unless the evidence is decisive not only as to the number of cattle so driven upon the' bridge, but also as to the weight which bridges on highways, like the one in question, should be constructed to sustain. Sut- ton V. Town of Wauwatosa, 29 Wis., 21. §213. Repair of bridge — notice to public — nonsuit. Where a bridge becomes insecure in the forenoon, needing repairs which cannot at once be made, the fastening securely across the end of the bridge, breast hig'h, of a plank a foot wide, is a sufficient notice to travelers that the bridge is impassable. Upon such a state of facts being shown by plaintiff in an action to recover for death of a person who fell through the bridge in attempting to cross it, a nonsuit should have been granted. Cor- nelius V. City of Appleton, 22 Wis., 635. §214. Intersecting sidewalks of different heigths. The sidewalk of one street in a city was from 21 inches to 3 feet higher than the sidewalk of another at their intersection, and in passing from one to the other there was a step about half way down. ^ Plaintiff, who was sixty-six years old, was carry- ing on his shoulder a heavy basket, and while attempting to go down from the higher to the lower sidewalk, missed the step and fell. It was dark at the time, the street light being extinguished. Upon the evidence showing these facts, it was held that the question whether the. sidewalk was insufficient or out of repair at the time, and, if so, whether such defect was the cause of plain- tiff's injury, were properly submitted to the jury. Berg v. City of Milwaukee, 83 Wis., 599. §215. Imputable negligence — driver of private convey- ance. The contributory negligence of the driver of a private con- veyance in which a person injured was voluntarily riding at the time he received the injury, is imputable to such person, so as to 54 CASES AGAINST RAILROADS. §2 1 6-2 1 8 prevent a recovery by him or his administrator for the injuries sustained. Ritger v. City of Milwaukee, 99 Wis., 190; Prideaux V. City of Mineral Point, 43 Wis., 513; Otis v. Town of Janes- ville, 47 Wis., 432. e. Cases against railroads. §216. Fires caused by. In an action for injuries by fire to property adjoining a rail- road, from negligence of the company in. respect to the charac- ter or management of its locomotives, a want of ordinary care on plaintifif's part in the construction, management and use of the property, contributing directly to the accident, is a defense; and where there is evidence tending to sustain such a defense, the question of contributory negligence should be submitted to the jury. So held, where the contributory negligence charged con- sisted in permitting an accumulation of hay and shavings be- tween the two buildings destroyed, and under one of them, which was set upon blocks two and a half feet high, and with the side next the railroad left open below the sills. Ward v. Railway Co., 39 Wis., 144, and other cases in this court, as to contrib- utory negligence in cases of negligent injury to_ property by railroads, approved; Erd v. Railway Co., 41 Wis., 65 distin- guished from this case; and the points really decided in Kellugg V. Railway Co., 36 Wis., 333, distinguished from certain appar- ent dicta therein. Murphy v. Chicago & N. W. R. Co., 45 Wis., 233. §217. Same. Plaintiff piled some of his lumber partly on defendant's right of way, without his permission, where there was considerable debris, and with no watchman to look after it, and it was burned by a fire which the jury found was caused by defendant's negli- gence. The question of plaintiff's contributory negligence was properly for the jury. Gibbons v. Wis. Valley R. Co., 66 Wis., 161. §218. Same. In an action against a railroad company for damages by fire, the negligence of plaintiff in such cases, which precludes a re- covery, is where, in the presence of a seen danger (as where the fire has been set), he omits to do what prudence requires to be . done under the circumstances, for the protection of his property) 56 §219-223 CONTRIBUTORY NEGLIGENCE. or does some act inconsistent with its preservation. Where the danger is not seen, but anticipated merely, or dependent on future events (such as the future continuance of defendant's negJ ligence) plaintiff is not bound to guard against it by refraining from his usual course (being otherwise a prudent dne) in the management of his property and business. Kellogg v. Chicago & N. W. R. Co., 36 Wis., 223. §219. Same. It was not error, as against defendant, to submit to the jury the question whether plaintiff was negligent in permitting dry stubble and grass to remain on his land, and in not having plowed a sufficient strip adjoining the railway to prevent the spread of the fire. Ibid. §220. Same. The owner of a warehouse adjoining a railroad track, and of goods stored therein, is bound, as against the railroad company, only "to use what would be ordinary care and prudence undfer the circumstances, to avoid injury" to such warehouse and goods by fire from the locomotives of the road. Ward v. Milwaukee & St. P. R. Co., 29 Wis., 144. §221. Fences. In an action against a railrqSad company for injury occasioned by failure either to erect or to maintain fences on the line of its road, as in other actions for negligence, contributory negligence of the plaintiff is a defense. The cases in this court on the sub- ject reviewed. Curry v. Chicago & N. W. R. Co., 43 Wis., 665. §222. Same. Under Sec. 1810 R. S., as amended by Ch. 193, Laws of 1881, after fences are once in good faith constructed, although thereafter they are destroyed or become defective, an action for an injury caused thereby will be defeated if it appear that the plaintiff was himself guilty of negligence, which contributed directly to the injury. Martin v. Stewart, 73 Wis., 553. §223. Diligence in repairing — nonsuit. Where a severe storm or wind blew down a quantity of rail- road fencing, and plaintiff, who had knowledge of the storm which blew down such fences, but made no endeavor to ascer- tain whether they had been repaired or not, and he turned his cattle loose upon land adjoining the railroad fences, and the cat- 66 CASES AGAINST RAILROADS. §224-229 tie were thereafter killed or injured, such person is guilty of con- tributory negligence, which will defeat a recovery for the loss sustained by reason of the killing of such cattle, and such negli- gence appearing by plaintiff's own testimony, a nonsuit should have been ordered. Carey v. Chicago, M. & St. P. R. Co., 61 Wis., 71. §224. Defective fences — killing live stock. Where a person in charge of "horses, with knowledge of an opening in a right of way fence, and of the destruction of a pasture fence, turns them loose in such pasture, so that they could escape on to the right of way, such conduct precludes any recovery for damages for injuries caused such animals by a passing train. McCann v. C. St. P. M. & O. R. Co., 96 Wis., 664. §225. When cannot be presumed. Negligence cannot be assumed by the court solely from the fact that deceased was in front of the car, because his duties as swftchman caused him to be there. Paine v. Eastern R. Co., 91 Wis., 340. §226. ITnguarded frog. Leaving a frog unguarded, although contrary to Ch. 123, Laws of 1889, providing for a penalty for such neglect, does not do away with the defense of contributory negligence. Holum v. Chicago, M. & St. P. R. Co., 80 Wis., 299. §227, Boy of seven on track — ^knowledge of father. It is not enough to establish contributory negligence as a matter of law, that a boy less than 7 years of age was upon a railroad track at a street crossing, even when coupled with the fact that his father saw him going towards the track a short time before. Johnson v. Chicago & N. W. R. Co., 56 Wis., 274. §228, Jumping from moAring train. Jumping from a train going 18 miles an hour is contributory negligence which will bar a recovery. Brown v. Chicago, M. & 'St. P. R. Co., 80 Wis., 162. §229. Same. ' As a general rule it is negligence for an adult person to- jump from a train of cars in motion. Hemmingway v. Chicago, M. & St. P. R. Co., 72 Wis., 42. §230-234 CONTRIBUTORY NEGLIGENCE. ' §230. Same. It is contributory negligence for one to go out of the car in which she was riding, onto the platform of the same, go down the platform steps and from there step or jump onto the depot platform, all while the train is in motion. Jewell v. Chicago, St. P. & M. R. Co., 54 Wis., 610. §231. Plaintiff's lack of care after accident. The failure of a plaintiff lo take care of herself after being expelled from a train, which aggravated the injuries then re- ceived, is not contributory negligehce which will entirely defeat a recovery. Patry v. Chicago, St. P. M. & O. R. Co., 82 Wis., 408. §232. Walking on track — momentary diversion. In an action for personal injuries to a 13-year-old boy, the evidence showed plaintiff saw the cars on the track ahead of him and thought they were standing still; that his attention was momentarily diverted by a passing engine, and he then resumed walking towards the train which was being backed slowly towards him; and that it was not necessary to walk upon the track in order to reach his destination. The question of con- tributory negligence was properly submitted to the jury. Wha- len v. Chicago & N. W. R. Co., 75 Wis., 654. §238. Standing on side track. Where it appeared from plaintiff's evidence, that upon a dark night, and without any necessity therefor, he was standing on a sidetrack leading to a round house, and where, as he well knew, trains and locomotives were passing in both directions almost constantly; that he did not look along the line of the track on which he was standing, but suffered his attention to be wholly diverted by the lights of a train passing on another track; and while in that position, he was struck by an engine moving on the track on which his foot rested, he was guilty of contrib- utory negligence, and should have been nonsuited. Delaney v. Milwaukee & St. P. R. Co., 33 Wis., 67. §234. Animals, injury to. Plaintiff's premises, in a city, were so nearly surrounded by railroads running within a few feet of them, that his cow, if suf- fered to be at large, would be likely to get upon some one of said roads. She was accustomed to go for water to a canal on one side of his premises, and might go to a river on the otl^pr sid", 5S CASES AGAINST RAILROADS. §235-237 but, to reach either, must cross a railroad. Late in the fall, when grass was scarce and none growing in the immediate vicinil^' ol plaintiff's barn, his cow, after being housed until late in the day, _ was turned into the street without anyone to look after her; and not long after, being near but not upon the track of defendanf s road, a few rods from plaintiff's premises and near the river, feeding on grass growing on defendant's embankment, she started on the approach of the train, and, after running a short distance, was struck upon the trafck and fatally injured.' In an action for the damges, the above facts appearing from the plain- tiff's evidence.: Held, as a matter of law, that plaintiff was guilty of gross contributory negligence, and could not recover in the absence of malice or wilfulness on defendant's part. Lau- rence v. Railway Co., 42 Wis., 322; Curry v. Railway Co., 43 Wis., 665; McCandless v. Chicago & N. W. R. Co., 45 Wis., 365. §235. Same. Where the negligence of the owner dii^ectly co-operates with that of the company's agents in producing an injury to cattle, he cannot recover without showing such agents to have been guilty of gross carelessness or wilful misconduct. A mere mistake of judgment on the part of the engineer as to what measures will be suiScient to prevent a collision will not render the company liable in such case. Fisher v. Farmers' Loan & Trust Co., 21 Wis., 73. §236. Same. Whether or not contributory negligence would be a defense to an action for an injury arising from the failure of a railroad company to construct a fence as required by statute, such negli- gence may defeat an action for an injury arising from failure of the company to maintain in repair suc}a a feijce, once built. Jones V. Sheboygan & F. d L. R. Co., 43 Wis., 306; Lawrence v. Mil- waukee, L. S. & W. R. Co., 42 Wis., 322. §237. Same. In an action for the value of plaintiff's horse, which escaped upon defendant's" railway track from an adjoining field, and was killed by a train, in consequence, as i^ alleged, of a defect in defendant's fence at that place; Held, that if it had appeared that the horse was breachy, and accustomed to jump or break lawful fences, and that plaintiff, knowing these facts, turned him 59 §238-241 CONTRIBUTORY NEGLIGENCE. loose in the field adjoining the track, the jury might have found upon this evidence that plaintiff was guilty of contributory negli- gence, though the court could not so hold as a matter of law, Jones V. Sheboygan & F. d L. R. Co., 43 Wis., 306. §238. Same. The gate through which plaintiff's animals escaped upon the track had been out of repair for several weeks and defendant's foreman, whose duty it was to repair it, had timely notice thereof. Some four or five weeks before the injuries complained of were inflicted, the plaintiff fastened the gate with a chain so that his stock could not open it, and it was kept constantly fastened with this chain until the day of the injury, when two sons of the plain- tiff, aged, respectively, 19 and 17 years, who lived with and worked for their father, drove the plaintiff's stock, including the animals injured, from another field through such gate into the pasture. The eldest son shut the gate after the stock passed through it, but did not fasten the gate with the chain. Held, plaintiff guilty of contributory negligence. Richardson v. Chi- cago & N. W. Ry. Co., 56 Wis., 347. §239. Same. Plaintiff turned his colt into a pasture knowing that there was nothing to prevent it from going on the railroad tra9k, nor did he use any precaution to prevent it from doing so. Held, a clea!r case of contributory negligence, defeating recovery by plaintiff for the killing of the colt by defendant's train. Martin V. Stewart, 73 Wis., 553. §240. Same. Four or five rods of the fence between plaintiff's premises and defendant's right of way had been broken down for =ome months, as plaintiff well knew. Plaintiff had turned some horses into the enclosure to graze, and directed an employee to watch them and see they did not stray on the, track, but the employee's attention becoming diverted for a minute or two the horses wend through the opening and on to the right of way, where they were killed by the freight train of the defendant that had just passed along. Held, guilty of contributory negligence. Peter- son V. N. P. R. Co., 86 Wis., 206. §241. Same. Plaintiff, living about three-fourths of a mile from defend- ant's track, which he knew to be unfenced, permitted his cow to 60 CASES AGAINST RAILROADS. §242-245 pasture in summer (presumably with other cattle), on a Jarge tract of uninclosed grass land, extending from the neighborhood of his residence to the track; and she passed upon the track from said land, and was injued. Held, that upon these facts the ques- tion of contributory negligence, being open to doubt and debate, was for the jury. Lawrence v. Railway Co., 43 Wis., 322, dis- tinguished; Curry v. Chicago & N. W. Ry. Co., 43 Wis., 665. §242. Same. Shortly before sundown, in the month of February, two colts belonging to plaintiff escaped by' accidentally running against and forcing open a gate in his barnyard fence, while he was at supper. Shortly after, the colts being out of sight, plain- tiff went a mile in the direction he supposed they had gone, but could not find them, and returned home. During the night the colts were killed on defendant's track. Held, upon proof of these facts, the court did not err in assuming that plaintiff was not guilty of contributory negligence in failing to seek for his colts with due diligence, and in refusing to submit that question to the jury. Laude v. Chicago & N. W. R. Co., 33 Wis., 640. §243. Frightened horse. Plaintiff, who was on the top of a load of stave bolts upon his sleigh, attempted to pass a car standing upon a switch track close to but not actually obstructing the traveled part of a high- way, which car could be seen for a considerable distance by per- sons passing along said highway. When opposite the car plain- tiff's horses became suddenly frightened at seeing it and sprang to one side, throwing the load and plaintiff down the grade, by which he was injured. Held, not sufficient for a court to hold plaintiff guilty of contributory negligence, as a matter of law. Bussian v. Milwaukee, S. & W. R. Co., 56 Wis., 325. §244. Same. The fact that deceased incurred great risk from his own horse, while lawfully endeavoring to prevent its escape, is not proof of negligence on his part such as will discharge the railroad company from liability. He took that risk, but not a risk aris- ing from any negligence of the company, that was unknown to him. Butler v. Milwaukee & St. P. R. Co., 28 Wis., 487; Rothe V. Railway Co., 31 Wis., 256, distinguished. §245. TJncoupling moving cars — custom. It cannot be held as a matter of law that a switchman is guilty 61 §246-250 CONTRIBUTORY NEGLIGENCE. of contributory negligence, because he attempted to uncouple cars while they were slowly moving, there being evidence that this method of uncoupling was well-nigh universal in the yards of the defendant company, and that it had been practiced with- the knowledge and tacit approval of the yardmaster for years; and no rule or regulation was shown to the contrary. Hennesey v. Chicago & N. W. R. Co., 99 Wis., 109. §246, Same. A brakeman left his regular post of employment to uncouple cars while in motion. The evidence clearly showed it was not his duty to uncouple cars while they, were in motion; that his doing so was against the established rules of the company; and that no orders were given him to so make such coupling. Held, guilty of contributory negligence. Lockwood v. Chicago & N. W. R. Co., 55 Wis., 50. §247. Same — custom. It cannot be held, as a matter of law, that it is contributory negligence for a switchman to attempt to uncouple cars that are slowly moving, there being evidence that this custom was well nigh universal in the yards where the accident happened, an^ that it had been practised with the knowledge and approval of ■ the yardmaster for years, and no rule or regulation to the con- trary being shown. Hennesey v. Chicago & N. W. R. Co., 99' Wis., 109. §248. Coupling moving cars. When a brakeman sees his signals to slow down are not obeyed, and the moving cars he is to couple to others standing still are coming at a dangerous rate of speed, it would seem that he was guilty of contributory negligence in attempting to make the coupUng under such conditions. Lagage v. Chicago & N. W. R. Co., 91 Wis., 507. §249. Same. When a switchman attempts to couple moving cars, knowing that his signals to slow-up are not obeyed, and that the cars are moving at a dangerous speed for making such coupling, he is guilty of contributory negligence in going between the cars at such time for such purpose. Kennedy v. Lake Superior T. & T. Co., 87 Wis., 38. §250. Plaintiff's failure to mark goods properly. Where a mistake in forwarding goods arose from plaintiflE's 62 CASES AGAINST RAILROADS. §251-254 failure to mark the goods with the name of the coupty, as well as town (there being two towns, in the state of the same name), or to indicate the nearest railway station or the proper line of road, he is guilty of contributory negligence. Congar v. Chicago & N. W. R. Co., 24 Wis., 157. §251. Standard of care — ^injury to engineer. In determining whether a locomotive engineer, injured by a collision while running a train upon a railway, was guilty of _ negligence in remaining at his post and not jumping off before the collision, the standard of ordinary care and prudence on his part must be fixed with reference to the; peculiar responsibilities of his employment. Cottrill v. Chicago, M. & St. P. R. Co., -17 Wis., 634. §252. Same. The mere fact that such an engineer running a train upon a railroad, after seeing a signal to stop, and after reversing his engine, might, with probable safety to himself, have gotten off from his locomotive before its collision with another train then approaching, and that he remained at his post grasping the lever and throttle until the collision occurred, will not justify the court in holding, as matter of law, that he was negligent. Ibid. I §253. Defendant's failure to keep look out. In an action against a railroad for personal injuries, the plain- tiff was held guilty of contributory neghgence, but the evidence was sufficient in the absence of such contributory negligence to justify the submission of the case to the jury as to the defendant's negligence in failing to keep a look out in the direction in which the cars were moving, as they approached the street crossing where people were liable to be. Schlimgen v. Chicago, M. & St. P. R. Co., 90 Wis., 186. §254. Biding in freight car, with horses. Plaintiff's intestate was in a car with some horses, for the purpose of caring for them, and pursuant to a contract of car- riage, and was killed through the gross negligence of defendant's servants. Held, that deceased was in the very place he should have been, and not like a common passenger, who voluntarily places himself in a dangerous position, and therefore he was not guilty of contributory negligence. Lawson v. Chicago, St. P. M. & O. R. Co., 64 Wis., 447. 63 §255-258 CONTRIBUTORY NEGLIGENCE. §255. Biding in car with stock. A person who ships live stock, and rides in the car with such stock so as to take care pf it, is not chargeable with contributory, negligence because of riding in a freight car and exposed to greater peril than if he rode in a passenger car. Dowd y. Chi- cago, M. & St. P. R. Co., 84 Wis., 105. §256. Crossing track in front of moving train. Plaintiff's intestate was walking on a path about 3 feet south of the railroad track, when a train, which he knew to be about due at that time, was 40 rods behind him. When it was within about 40 feet of him, he attempted to cross over the track, using neither his eyes or his ears in this place of danger. Held, he was guilty of contributory negligence, from which the failure of the defendant to give signals of the approach of the train, did not relieve him, nor the fact that the train was running at an unlaw-" ful rate of speed. Schilling v. Chicago, M. & St. P. R. Co., 71 Wis., 355. I §257. Same. One of defendant's tracks, connecting two depots near a city, ran within six or eight feet of the top of steps leading into the basement of a flouring mill; and plaintiff's decedent passed over the track and down the steps into the mill and soon after returned with two bags of flour on his right shoulder, which completely obstructed his view on that side ; and, stepping in front of a train , of cars approaching from the right at a speed of four miles per hour, he was immediately run over and killed. Held, that'there was such negligence on the part of the deceased, contributing to the injury, that plaintiff" could not recover therefor. Rothe v. Milwaukee & St. P. R. Co., 21 Wis., 256. §258. Removing obstruction from track in front of moving train. Plaintiff, with others, was at work for defendant upon the track of its logging road, and instructed to clear the tracks, when the train gave warning of its approach by whistling. A train came along with six loaded cars, running about 20 miles an Hour. Two of the men with plaintiff cleared the track of their tools and rubbish, and plaintiff rolled a timber off the track, and all stepped back for the train to pass, which was 70 or 80 feet away. The engineer, seeing a tie on the track, which had been used as a skid, called the men to take it off, and plaintiff started for It 64 CASES AGAINST RAILROADS. §259-262 when the train was 30 to 30 feet from it, when he was caught by the .train, thrown under, and very severely injured. Held, guilty of contributory negligence, his injuries being the result of his own grossly careless and rash conduct. Writt v. Guard Lumber Co., 91 Wis., 496. §259. Riding on hand car. The complaint alleges that plaintfff, in sitting upon the hind end of the hand car, with his feet hanging down, acted upon the advice of the person in charge of the car, and without being aware of the danger of the position. Held, on demurrer, that this does not show contributory negligence. Pool v. ^Chicago^ M. & St. P. R. Co., 53 Wis., 657. §260. Obstruction in car aisle. Plaintiff entered defendant's car at the rear end, carrying a satchel in her hand, and walked along the aisle looking for a seat, when she tumbled over two satchels then in the aisle, and received considerable injuries. None of defendant's employees were in the car at the time, and the car was so Hghted that a person could on entering see whether there were any obstruc- tions in the aisle. Held, non-suit properly directed. Stimson V. Milwaukee, L. S. & W. R. Co., 75 Wis., 381. §261. Broken window pane — sparks causing fire. The fact that part of a pane of glass was out of the window of plaintiff's house, adjoining defendant's road, and that the damage was caused by sparks blown through the window from defendant's engine (which was being driven' at unlawful speed), is not such evidence of contributory negligence as would prevent a recovery. Martin v. Western Union R. Co., 23 Wis., 437. §262. Injuries to employees.^being crushed between car and bank. Plaintiff was instructed by defendant's foreman to assist in pushing a loaded car. In one place, the bank of earth was so near the track that there was no room for a man between the car and the bank. Plaintiff did not know of this, and took the ' only place on the car left for him. The ground was rough and muddy, and it was necessary for him to bow his head, and see where to step. He was caught between the car and bank, and crushed. The court found him not guilty of contributory negli- gence. Stackman v. Chicago, M. & St. P. R. Co., 80 Wis., 428. 5 6.5 §263-265 CONTRIBUTORY NEGLIGENCE. §263. Same — injury to switclimaii — assumption of risk. Plaintiff, a switchman on defendant's road, was riding on the switch engine to make a switch, and when about to swing off the engine while going at the rate of 5 miles an hour, his foot caught on the handle of a switch stand only ly^ inches distant from the gangway steps, and about 2 feet above the ground, and he was thrown to the ground and injured. His attention was momen- tarily diverted by the necessity of giving some instructions to a new helper. The switch was never used and had no light on it. Plaintiff had worked in this particular yard for months and al- ways at night. Held, question for jury whether plaintiff had as- sumed the risk, and also whether he was guilty of contributory negligence in jumping from the engine while it was in motion. Coif V. Chicago, St. P. M. & O. R. Co., 87 Wis., 273. §264. Same — ^killing switchman — shed near track. A switchman was oh the platform of a mail car, which was being switched. His duties made it necessary for him to be there in order to signal the engineer. In order to avoid a stream of water trickling from the top of the car, he stood on the bottom step of the platform, and leaned outward, when he was struck by a shed, 22^ inches from the track, thrown under the car, and killed. There were, findings that deceased did not know of the existence of the shed and its distance from the track and cars, and that he had not the means of such knowledge. The court could not say as matter of law that defendant was not negligent or that plaintiff was guilty of contributory negligence. Kelleher V. Milwaukee & N. R. Co., 80 Wis., 584. §265.^ Same — ^killing fireman — failure to look. Plaintiff's intestate was a fireman in defendant's employ, and was killed by stepping off from his engine on a side track, when he was struck by an egine coming at the rate of 15 miles an hour, which he had seen standing about 300 feet from him only a few moments before. Had he looked in the direction of that engine he could have seen it coming towards him and prevented the injury. Held, guilty of contributory negligence, and his failure to look was not excused by want of ordinary care on part of defendant, in failure to give signals of the approaching engine, even though such failure amounts to a violation of law. McCad- den v. Abbot, 92 Wis., 551. 66 CASES AGAINST RAILROADS. §266-268 §266. Same — attempting to stop moving car — defective brake. Plaintiff's intestate, desiring to have a car moved in the yard in which he was foreman, had it started by a hors^ on a down grade, and then jumped on the car to ride it down to the place destined. Being unable to stop the car by the brake, which was defective, he jumped off the car, and attempted to stop it by placing chips or blocks of wood under the wheels. Instead of walking or running by the side of the car, he kept in front of it, until the car struck a tramway, the existence of which he knew, and was thrown down by the faUing timbers, and seriously in- jured. Held, guilty of contributory negligence in putting him- self unnecessarily in a place of peril. He knew all the elements' of danger, and assumed the risk. Culbertson v. Milwaukee & N. R. Co., 88 Wis., 567. §267. Same — injury to brakeman — failure of engineer to "slow up." The evidence tending strongly to show that the plaintiff was in a proper place on the pilot to make a coupling; that the draw- bar was long and heavy, which plaintiff had to raise and hold up in his left hand, ready to enter into the drawhead of a flat car; that he had the right to believe that the engineer (who could see the flat car and how and where the engine would come in con- tact with it) would slow up the engine in proper time for him to do so, but instead the engine came at the speed of at least 3 miles an hour, and when the collision came it was too late to escape, is sufficient to warrant the jury in finding that plaintiff was not guilty of negligence contributing to the injury. Baltzer v. Chi- cago, M. & N. R. Co., 89 Wis., 357. §268. Same — walking on track — failure to look. Plaintiff was an employee of defendant, fully acquainted with its switching yard through which he was walking, and knew that switching was actively in progress on the tracks behind him at the very time he was walking on the main track. His cap was pulled dow;i over his ears, partially diminishing his sense of hearing. There were spaces between the tracks where he could have walked safely, but, knowing all these facts, he deliberately walked on, or immediately at, side of main track, for 178^ feet, without looking around. He was struck by some cars "kicked" on the main track by a switch engine and injured. Held, guilty 67 §269-272 CONTRIBUTORY NEGLIGENCE. of contributory negligence. Wilber v. Wis. Cent. R. Co., 86 Wis., 535. §269. Killing person driving on track. When one attempts to cross a railroad track on a dark night, driving a team, in a place where the angle is very oblique, and instead of continuing in the highway, follows the railroad track for nearly twO' miles, he is guilty of such negligence as will pre- vent a recovery, although his getting on the track in the first in- stance was caused by the negligence of the defendant. McDon- ald V. Chicago, M. & St. P. R. Co., 75 Wis., 121. §270. Evidence of accident — gross negligence of train- men. Evidence that the men in charge of the train saw a wagon seat and box near the track shortly before reaching the place where deceased and his team were run over does not establish the fact that they knew deceased was ahead of them driving on the track, nor that they were gfuilty of negligence in going ahead with the train at full speed. McDonald v. Chicago, M. & St' P. R. Co., 75 Wis., 121. §271. Injury to licensee on tracks. Plaintiff was upon defendant's tracks as a licensee, and while walking along said tracks was struck by defendant's locomotive going in the same direction, and injured. After he first stepped on the track, he looked to see if it was clear, and saw the engine about 300 feet away and apparently going from him; that he walked south about 75 or 100 feet, when he looked again, and saw engine close to him, and he then tried to jump the track, but his left foot got caught by the wheels, and cut off. Held, ques- tion of contributory negligence was for the jury. Johnson v. Lake Superior T. & T. Co., 86 Wis., 64. §272. Not stopping at station — failure to notify passen- gers — boy jumping from train. The plaintifif, a boy not quite 11 years old, was sent by his mother on a freight train to a place 7 miles distant, and she cau- tioned him not to get off the train while it was in motion. Tlie conductor collected the boy's fare, and asked him his name and where he was going. When the train arrived at the station plat- form, it did not stop, and the boy jumped off, receiving the in- juries complained of. The findings of the jury that the conduc- tor was negligent in not informing the boy that the train first 68 CASES AGAINST RAILROADS. §273-276 passed the platform, and afterwards backed down and then stopped, or in not preventing the plaintiff from jumping; that plaintiff was not guilty of contributory negligence and that the boy's mother was not guilty of contributory negligence, were justifiable. Hemmingway v. Chicago, M. & St. P. R. Co., 73 Wis., 43. §273. Contributory negligence of parents. In an action against a railway company for the killing of a bo)ii sixteen months old, the evidence established the facts that the child's parents were poor and had left him in charge of his brother, who was seven years old, while the mother crossed the railroad track to milk her cow, then in pasture. That a few minutes later the child was killed by a train upon the track at a place immediately opposite a hole in the fence, through which the mother had gone. It was also shown that the mother knew that once before the child had followed her upon the track through such hole in the fence. Held, question for the jury as to whether the negligence of the parents contributed to the death of the child. Hoppe v. Chicago, M. & St. P. R. Co., 61 Wis., 357. §274. Same. Where deceased was killed by a locomotive engine in crossing defendant's railway track, if it were clear from the undisputed facts, that the boy himself, considering his age and intelligence, did not exercise proper care in crossing the track, or that, in view of his tender years, his mother was guilty of contributory negligence in permitting him to go alone, on the errand upon which he was sent across siich track, the trial court might deter- mine, as a proposition of law, that there could be no recovery. Ewen V. Chicago & N. W. R. Co., 38 Wis., 613. §275. Injury to person on track near engine. Where plaintiff, a boy nearly 16 years of age, and familiar with railway trains and the conduct of railway business, 'delib- erately placed himself upon a railway track, twenty feet from an engine, which he knew was liable to move any minute, and with his back to the engine, he is guilty of contributory negligence, and it makes no difference whether he was a licensee or a tres- passer on the right of way. Lofdahl v. Milwaukee, St. P. & S. Ste. M. R. Co., 88 Wis., 431. §276. Alighting from moving train. Plaintiff, a boy of seventeen, entered the train of defendant 69 §277-279 CONTRIBUTORY NEGLIGENCE. without having purchased a ticket. When paying his fare to the conductor, he was informed by the latter that the train did not stop at the station he wanted to stop at, but that it would slacken up sufiScient to allow him to get off. When near his destination, the train began to slacken its speed, and when some distance beyond the station, the plaintiff attempted to alight, believing the speed was sufficiently slackened, but was injured. Upon demurrer to the complaint, it was held no cause of action was stated. SchifHer v. Chicago & N. W. R. Co., 96 Wis., 141. f. Miscellaneous casei. §277. Street railways — plaintiff standing in dangerous place. Plaintiff, while standing on the inside footboard of a street car, was struck by a passing car on an adjacent track and in- jured. The jury found that there was room inside the car at the time, which he might have occupied ; that he knew he was stand- ing in a dangerous place and that he was guilty of contributory negligence. Held, plaintiff could not recover, neither the evi- dence nor the findings of the jury made the defendant guilty of gross negligence. Schopnfeld v. Mil. City R. Co., 74 Wis., 433. §278. Same — Crossing track ahead of moving car. The court cannot say, as a matter of law, that it was negli- gence for plaintiff to attempt to cross street car tracks, about 13 feet in width, at an estimated distance of two rods in advance of a single horse street car, proceeding at a very moderate pace. Thoresen v. La Crosse City R. Co., 87 Wis., 597. §279. Same — collision with wagon. In an action for personal injuries for collision between a street car and a wagon, it appeared that the plaintiff was in a very long wagon holding onto a safe therein, and the driver and another were on the seat in front of him, all facing the horse. They came out of an alley onto the street and were driving in a northwesterly direction diagonally across the car tracks, and could not see a car coming from the east, until the front feet of plaintiff's horse was on the car track, when a car was seen about 100 feet away, coming towards them, and the driver was told to hurry up. The driver tried to turn his horse to the right, and get out of the track, but owing to the wheel slipping along the track, obstructions on the track, and the length of the wagon, it 70 MISCELLANEOUS CASES. §280-283 could not be gotten out of the way soon enough, and a collision occurred, by which plaintiff was injured. It was conceded that from the time they left the alley until the collision, the plaintiff did not see or hear the car coming. Held, plaintiff and driver were both guilty of negligence. The fact that plaintiff neither saw nor heard the coming car, and his back was towards it all the time, is proof that he neither looked nor listened ; and, as the driver did not see the car until he was told to hurry up, and in- stead of turning to the left where the road was unobstructed, he turned to the right where the obstruction in the street should have warned him of the danger in attempting to turn in that direction in front of the coming car, his negligence is apparent. Lockwood V. Belle City R. Co., 93 Wis., 97. §280. Same — same. Plaintiff's driver was in a wagon covered on top and sides with wood and seated about 2 feet back from the front of such covering, and in driving across a street railroad track, the wagog was struck by an electric car. The driver could not see the car approaching from the place where he was seated. Held, plciin- tiff, by his driver, was guilty of contributory negligence barring a recovery. Boerth v. West Side R. Co., 87 Wis., 288. §281. Same — no alarm given. The driver testified that no bell nor alarm of any kind was sounded when the car struck the wagon. This being so, defend- ant was guilty of negligence. Boerth v. West Side R. Co., 87 Wis., 288. §282. Same — collision with vehicle causing death. Where, in an action against a street railroad company, for collision causing death, it appears that deceased, at the time of the accident was attempting to cross defendant's double tracks be- hind a car going in a direction, in the dusk of the evening, which obstructed her view of a car coming on the other track from the opposite direction, and which collided with the wagon she was driving, and thus caused the fatal accident. There being no evidence that she could see the approaching car in time to avoid the accident, the court will not say, as matter of law, that she was guilty of contributory negligence. Thoresen v. La Crosse City R. Co., 94 Wis., 129. §283. Same — electric shock. In an action against a street railway company for damages 71 \ §284-286 CONTRIBUTORY NEGLIGENCE. received by reason of an electric shock caused by defendant's alleged negligence, it was shown that it has been customary for the conductors and for passengers to pass from one car to an- other while they were in motion. There was no rule against it and no objection had been made or caution given, and there was no apparent reason to apprehend that a shock would be received in so doing. Held, that it could not be said, as matter of law, that plaintiff was guilty of contributory negligence. Burt v. Douglas County St. R. Co., 83 Wis., 229. §284. Injury from explosion of burning oil. Where a passenger train was brought to a stop several hun- dred feet from a wreck upon the track, and flames were arising from a tank of burning naphtha in such wreck, and a passenger- left such train, and from motives of curiosity or pleasure approached near such wreck and was injured by explosion of the naphtha, he is guilty of contributory negligence and cannot recover. Conroy v. Chicago, St. P. M. & O. R. Co., 96 Wis., 243. §285. Injury from descending elevator — unprotected shaft openings. Plaintiff was employed in the iron manufacturing plant of the defendant, in which were two elevator shafts, standing side by side, with an opening in each shaft about nine feet by ten. When one elevator was at the top, the other was at the bottom, but whether the elevators were up or down could be seen only by artificial light. The openings to the elevator shafts were unpro- tected. Plaintiff was familiar with the locality and all the facts connected therewith, and approached the elevator shaft with the intention of placing his dinner pail upon the elevator, as was customary, when he was struck by the dtecending elevator. Under these circumstances the decision of the trial court that the' plaintiff was guilty of contributory negligence will not be dis- turbed. Powell V. Ashland Iron & Steel Co., 98 Wis., 35. §286. Defective staging. In an action for death caused by falling from a staging by reason of the breaking of a defective plank, deceased was not guilty of contributory negligence, as he could not see the defect on account of the darkness. Bright v. Barnett & R. Co., 88 Wis., 399. 72 MISCELLANEOUS CASES. §287 29 1 §287. Crowding person off dock into water. Plaintiff was crowded off from a dock into the water through defendant's negligence in driving a team from a ferryboat on to the dock, but there was evidence tending to show negligence on her part in standing upon the edge of the dock. Held, that her having assumed that position some time before the accident did not render her negligence remote. Cunningham v. Lyness, 33 Wis., 345. §288. Saw running out of its course. The plaintiff, being head sawyer in the lumber mill, was se- verely injured by the saw running out of its course, striking the iron head-block, breaking the saw and other portions of the machinery, and forcing some fragments against plaintiff. The log being sawed was a crooked one, and was running at an un- safe rate of speed. The speed would be controlled by plaintiff. Held, guilty of contributory negligence, and verdict in his favor set aside. Bibby v. Wausau Lumber Co., 80 Wis., 367. §289. Injury to fish nets. Where the owners of nets, who were near by, did not give warning to those in charge of a vessel approaching such nets, their contributory negligence is not thereby established, as a matter of law, but is a proper fact to be submitted to the jury- on ' that question. Wright v. Mulvaney, 78 Wis., 89. §290. Fires — burning marsh adjacent. Defendants, in order to protect their stacks from a fire which had been burning in the adjacent marsh, mowed a large belt around their respective stacks, and proceeded to burn a wide belt of stubble and grass surrounding them. Plaintiff saw the fire many hours before it reached him, and, apprehending danger, commenced moving his hay, but a large portion was burned be- fore he could remove it. Whether he used all proper care and reasonable effort to save his hay from fire, and whether, if not, his failure to do so directly contributed to the destruction of his hay, was a question for the jury to decide. Brown v. Brooks. 85 Wis., 390. §291. Same — threshing machine. In an action to recover for value of barley burned through defendant's alleged negligence, the evidence showed that for some time previous to the fire, the wind blew briskly from the direction of defendant's steam thresher towards stacks of unthreshed bar- 73 §292-295 CONTRIBUTORY NEGLIGENCE. ley about 75 feet away; that the fire was kindled in the barley by sparks from the smokestack of the engine and the barley de- stroyed. There was conflicting evidence as to plaintiff's knowl- edge of the danger, and the alleged warning to him by defendant of such danger. The evidence not clearly showing the plaintiff was guilty of contributory negligence, the question was properly submitted to the jury. Drevis v. Woods, 71 Wis.. 329. §292. Opening bars or gates — construction of statute. Under Sec. 32, Ch. 119, Laws of 1872, which declares that any person who shall open bars or gates on a railroad farm cross- ing, and not immediately close the same, shall be liable to the party injured for all damages resulting from -that act, one whose cattle have escaped upon a railroad through such open bars or gate, and have there been killed by a train, cannot recover from the person by whose fault such bars or gate were left open, if he had negligently suffered the cattle to escape from his own prem- ises to the farm of another on which such railroad crossing is lo- cated. Pitzner v. Shinnick, 39 Wis., 129. §293. Violating Sunday law — canal lock. The mere fact that plaintiff was attempting to pass his boat through a canal lock on Sunday, in violation of the statute when the damages were caused, would not prevent his recovery for such damages arising from the negligence of defendant or its servants. McArthur v. Green Bay & M. Canal Co., 34 Wis., 139. §294. Leaky roof. One who places machinery in a building which has a leaky roof, of which he has knowledge, is guilty of contributory negli- gence which will prevent recovery for damage to such machinery by rea'on of sach leaky condition. Mnth v. Frost, 68 Wis., 425. §295. Vicious dog frightening horse — wagon seat tip- ping. The evidence showing that plaintiff, while driving along the road in the evening, had one of his horses attacked by defendant's ■ dog, which horse sprang and kicked over tlie tongue of the wagon, when plaintiff raised himself by the reins to hold the horse, when the horse again kicked, threw plaintiff back on the seat, which tipped out of the wagon, throwing plaintiff to the ground and causing the injuries complained of. Held, plaintiff 74 MISCELLANEOUS CASES. §296-299 not guilty of contributory negligence. Meracle v. Down, 64 Wis., 333. §296. Division fences. Both parties alike being bound to keep the division fence between them in repair, plaintiff's cattle escaped upon defend- ant's premises and thence, by a gate left open by defendant's fault, between his land and a railway, got upon the railway track and were injured. Held, that defendant could not set up plain- tiff's failure to repair said division fence as contributory negli- gence. Pitzner v. Shinnick,"41 Wis., 676. §297. Accident insurance — neligence as defense — condi- tions of policy. In an action on a policy of accident insurance, the question of contributory negligence as a defense must be determined by the terms of the policy. Schneider v. Provident L. Ins. Co., 24 Wis., 38, distinguished; Shevlin v. Am. Mut. Ace. Assn. 94 Wis., 180. §298. Same — ^jumping from moving train. The act of jumping from the top or the side of a rapidly mov- ing freight car, without any reasonable cause therefor, on a dark night, is an act of gross negligence, and consistent only with a conscious disregard of personal safety, measuring such conduct by the stancfcd of that of a reasonably prudent person. Id. §299. Same — exposure to unnecessary danger. Under an accident insurance policy providing there shall be no liability from "any injury resulting in whole or in part from exposure to unnecessary danger," the insured is held to the exer- cise of ordinary care, and no recovery can be had if the injury is caused by reason of exposure to unnecessary danger, within the general principles of the law of negligence. Id. 75 CHAPTER III. NEGLIGENCE OF RAILWAYS OTHER THAN AS CARRIERS. a. Actionable negligence, b. Fences and depot grownds. c. Cross- ings, d. Injuries to employees, e. Animals, and liability for injury to. f. Fires, g. Rules and regulations, h. Speed of trains, i. Signals, k. Questions of negligence for jury. 1. License, m. Lessees. a. Actionable negligence. §300. Degree of care in running. Since the business of railway companies involves great risk to human life, especially in running trains across highways in popu- lous places, the law requires of them the utmost care. Butler v. Milwaukee & St. P. R. Co., 28 Wis., 487. §301. Approaching track — duty to look and listen. One who approaches a railway track is bound to both look axijd listen to g^ard against danger from a moving train, and also in respect to a locomotive or train that may quickly be put in motion to his great peril. Nolan v. Milwaukee, L. S. & W. R. Co., 91 Wis., 16. §302. Duty of company to keep lookout along track. A railroad company is bound to provide for a careful look- out in the direction in which the train is moving, in places where people, and especially where children, are likely to be upon the track. Townley v. Chicago, M. & St. P. R. Co., 53 Wis., 626. §303. Same — killing boy — question for jury. In an action against a railway company for the killing of a boy between 6 and 7 years of age, there was evidence that the deceased was from 34 to 50 feet from the engine at the time it started, and that both the fireman and engineer could have seen him by looking had they done so. Held, under the evi- dence, the question of defendant's negligence in not keeping a proper lookout, was for the jury. Johnson v. Chicago & N. W. R. Co., 56 Wis., 274. 76 ACTIONABLE NEGLIGENCE. §304-307 §304. starting train before person not a passenger had gotten off. The plaintiff went to the defendant's depot, one dark and foggy morning, to meet his wife, who was coming on the approaching train. Upon its arrival, he got on the first sleeper, and asked the porter if there was a lady to get off, and was answered, "May be she is in the next car." He then walked rapidly out of the car, and when he reached the platform, the train suddenly started, and he was thrown off the train and injured. His wife had got off the train before he went on, and her baggage had been taken off. How long the train stopped, or whether any starting signal was given, were matters of dis- pute. None of the persons having to do with the management of the train knew he had gone aboard, or that he expected to, and the Jarakeman knew his wife was off and needed no assist- ance, and hence the defendant was not liable, having no notice. Griswold V. Chicago & N. W. R. Co., 64 Wis., 653. ' §305. Restoration of highway — obstruction to view. The omission of a railroad company to remove a bank on its right of way, consisting of a natural hill through which the way was cut, and preventing the view of approaching trains from the highway, was not a failure to restore the highway to its former condition of usefulness within the meaning of Sec. 1836 R. S. Leitch V. Chicago & N. W. R. Co., 93 Wis., 79. §306. Highway crossings — duty of company as to restor- ing. Under Set. 11, Ch. 79, R. S. 1858, which requires a high- way over which a railway is constructed to be restored to its former usefulness, the railway company must so restore it that its use by the public shall not be materially interfered with, nor the^ highway be rendered" less safe and convenient to persons and teams passing over it — except so far as diminished safety and convenience are inseparable from any crossing of the highway by a railroad. Roberts v. Chicago & N. W. R. Co., 35 Wis., 679. §307. Running train past station. A freight train was run some distance beyond the station at which it arrived in order to permit the passing in the opposite direction of a train on the sidetrack, and then was backed down to the platform. This was according to the rules and regula- 77 §308-310 NEGLIGENCE OF RAILWAYS. tions of the defendant company. While passing beyond the platform in the first instance, the plaintiff, who was a passenger thereon, jumped off to the platform, and was injured. Held, not negligence on part of the company to so run its train beyond the platform without stopping, but as to whether it was its duty to notify the passengers that the train would first pass the plat- form before returning, not decided. Hemmingway v. Chicago, M. & St. P. R., 67 Wis., 668. §308. Injury to horses through delay in unloading. Plaintiff contracted with a railroad company, through its agent, to ship some horses and unload them at place of destina- tion that evening. Plaintiff shipped the horses and went on same train with the stock. Held, company was liable for dam- ages caused by delay iij unloading, although plaintiff was told about two minutes before the train started, by the conductor, that he did not think they could be unloaded that night. Cor- bett V. Chicago, St. P. M. & O. R. Co., 86 Wis., 82. §309. Injury to child — reckless conduct of employees. Where defendant's servants, with knowledge that a boy of such tender years that he could not be held to a very high degree of care, was in a dangerous situation walking and taking hold of a brake rod with one hand, recklessly and wantonly gave speed to a moving train, and jerked the child from his feet, throwing him under the cars and thus injuring him, their conduct consti- tutes actionable negligence without reference as to how the boy came to be in such a situation. McVoy v. Oakes, 91 Wis., 214. §310. Injury to passenger alighting from train — question for jury. In an action against a railroad company for personal injuries to plaintiff, while alighting from a train, there was evidence tending to ^how that she started from her seat, with her baby in her arms, when the train stopped, and proceeded with reasonable diligence to the front platform, and that while in the very act of aUghting with her husband's assistance' the train started and threw her to the ground. There was also evidence tending to show to the contrary, and that she did not start until the train was again in motion, and that in fact she jumped from the train while it was moving. But the plaintiff was entitled to have her state- ment of facts passed on by the jury, and it was error to direct a 78 ACTIONABLE NEGLIGENCE. ,§311-314 verdict for the defendant. Alford v. Chicago^ M. & St. P. R. Co., 86 Wis., 335. §311. Broken car — delay in repairing. A railroad company is not chargeable with negligence merely because it delays, for any length of time, to repair a broken car while it remains unused and not so situated as to create danger; nor merely because it moves such car to its shops for repairs,' and does not make such repairs at the place where the car was injured; nor merely because it puts such car in a train with others in order to take it to the repair shops. Flana- gan V. Chicago & N. W. R. Co., 45 Wis., 98. §312. Same — sal&e. The former decision in this case (45 Wis., 98) that a railroad company is not chargeable with negligence merely because it delays, for any length of time, to repair a broken car while it remains unused and not so situated as to create danger, nor merely because it moves such car to its shops for repairs, and does not make such repairs at the place where the car was injured— approved. Flanagan v. Chicago & N. W. R. Co., 50 Wis., 462. §313. Death of switchman — sufficiency of finding. In an action against a railroad com,pany for the death of a switchman by being caught between the end of a mail car, which was being switched and a shed near the track, he having thrust his body outside in order to escape water coming from the top of the car, a finding "that the shed was so close to the track as to render the place unnecessarily dangerous to employees in per- forming their duties at that place," is a sufficient finding of defendant's negligence, although it was objected that the true test was, not whether it was "unnecessarily" dangerous, but whether it was "unreasonably" dangerous. Kelleher v. Mil- waukee & N. R. Co., 80 Wis., 584. §314. liability for negligence of fellow servant. A railroad company is liable for injuries suffered in this state by one of its agents or servants from the negligence of any other agent or servant' thereof, without contributory negligence on his part (Sec. 1816 R. S.); and in case of his death from such injuries, the action may be brought by his personal representatives. Gumz V. Chicago, St. R & M. R. Co., 52 Wis., 672. NOTE— Sec. 1816 R. S. was repealed by Ch. 232, 1880. 79 §3I5'32I NEGLIGENCE OF RAILWAYS. §315. Negligence of postal agents. The negligent act of postal employees in throwing off a mail bag at a depot, is not negligence on the part of the railway com- pany. Muster v. Chicago, M. & St. P. R. Co., 61 Wis., 335. §316. Appliances to be reasonably safe. A railroad company is not required to have its cars or loco- motives constructed after the same pattern, but may lawfully construct them after different models, land may use different appliances in operating its railroad. The law only requires that , such cars, locomotives and appliances shall be reasonably safe for the uses to which they are put. Whitwam v. Wisconsin & M. R. Co., 58 Wis., 608. §317. Negligence of agent is negligence of company. Negligence of the agent of the company having the care and control of one of its yards, in permitting the obstructions to accu- mulate along the tracks in such yard, is negligence of the com- pany. Bessex v. Chicago & N. W. R. Co., 45 Wis., 477. §318. Leaving high-spirited team unattended near track —contributory negligence. To leave unattended, and within 19 feet of a railroad track, a young and high-spirited team of horses, afraid of the cars, is an act of negligence as a matter of law. Olson v. Chicago, M. & St. P. R. Co., 81 Wis., 41. §319. Duty to repair gate at farm crossing. It is negligence for defendant not to repair opening in a gate at a farm crossing, twenty inches wide, especially after being notified of the opening. Stuettgen v. \Wis. Cent. Co., 80 Wis., 498. §820. Duty to keep track free from obstructions. It is the duty of a railroad company to keep its tracks free from obstructions which will render the moving of cars along them unnecessarily hazardous to its employees and if, in conse- quence of its neglect of that duty, such an employee is injured, the company may be liable for the injury. Bessex v. Chicago & N. W. R. Co., 45 Wis., 477. §321.' Duty to keep tracks free from snow. It is the duty of defendant to keep its track free from obstruc- tions which render the movement of cars upon it dangerous to its employees. It is bound to keep its track properly flanged, 80 ACTIONABLE NEGLIGENCE. §322-326 and free from ice, snow and rubbish which endangers the safety of those operating the road. McClarney v. Chicago, M. & St. P. R. Co., 80 Wis., 377. §322. Contributory negligence — supervening negligence of defendant. Under the facts of the case, there was a question as to whether defendant's engineer should not, in the exercise of ordinary care and diligence, have discovered the negligence, if any, of deceased in time to have avoided the accident. Held, the deceased not being a trespasser, such supervening negligence of the engineer need not have been gross negligence in order to authorize a recovery. Valin v. Milwaukee & N. R. Co., 83 Wis., 1. §323. Injury to switchman — clearance post. A switchman, in alighting from a freight train which was moving slowly, came against a clearing post, and was thrown under the car and injured. Such post being a common appli- ance in the operation of a railroad, and one conducing to a greater safety in the operation of trains, it was not negligence for defenda'nt to use such appliance. Scidmore v. -Milwaukee, L. S. & W. R. Co., 89 Wis., 188. §324, Navigable rivers — drawbridge. Where a railroad bridge,. with the draw closed, was an unlaw- ful obstruction to the navigation of a river, it is not necessary that persons wishing to pass through the draw to give notice to that effect; nor are they bound to open the draw themselves; nor are they bound to use only such vessels as can pass under the closed draw. Gates v. N. P. R. Co., 64 Wis., 64. §325. Authority of ageint — special instructions. Where an agent has general authority to make certain con- tracts, but is restricted as to the mere form of it by instructions from his principal not known to the other contracting party; the principal is bound. Lawson v. Chicago, St. P. M. & O. R. Co., 64 Wis., 447. §326. Authority of conductor. It being customary for a person transporting horses on the defendarit's road to ride in company with them, it would seem that the authority of the conductor to grant such person per- mission to so ride would fall within his general authority in the 6 81 ^3^7'33^ NEGLIGENCE OF RAILWAYS. management and control of the train. Lawson v. Chicago, St. P. M. & O. R. Co., 64 Wis., 447. §327. Defective door on stock car. Defendant was charged with negligence in furnishing a defec- tive and dangerous car for transportation of plaintifiE's stock. The defect alleged was that the door in the end of the car, through which access was had to the inside of car, was loose, and came off and fell on plaintiff and injured him. The door is made to slide to the right on bars, and not to swing open. It nec- essarily has some play, but frequently gets stuck, and has to be opened by pressure or hammering. Plaintiff got it opened about six inches, and then took hold of it, exerting all his strength, when it broke open and fell on him, causing him to fall to the ground and be injured. Held, not to show any evidence of neg- ligence on part of defendant, even in the absence of contributory i negligence. Kleimenhagen v. Chicago, M. & St. P. R. Co., 65 Wis., 66. §328. Sale or transfer of franchises. A franchise of a railroad company to be a corporation is entirely distinct from the franchises to construct, operate and manage its road, and is not the subject of sale and transfer, unless by virtue of some positive statutory provision. Penneson V. Chicago, M. & St. P. R. Co., 93 Wis., 344. §329. Fires — subrogation — ^payment by insurer. The payment by an insurance company of the full amount of the loss caused by a fire virtually operates as an assignment of the cause of action to the insurer, and a part payment operates as an assignment pro tanto. Allen v. Chicago & N. W. R. Co., 94 Wis., 93. §330. Collision — error of engineer. The engineer of defendant's switch engine, who was in posi- tion to see better than his brakemac, told the latter they could make a switch before the regular train then about due, would arrive. They tried to make it, but could not, and a brakeman en the train was injured by the collision. It was error for the trial court to hold the engineer free from negligence. Albrecht V. Mil. & Sup. R. Co., 94 Wis., 397. §331. Duty to awaken passenger in sleeping car. It is the duty of a railroad company to awaken a passenger 82 ACTIONABLE NEGLIGENCE. §332-336 in a sleeping car in time to make the necessary preparations to leave the car in a suitable and decent manner, upon reaching the station, or to hold the train at that point for a sufficient length of time to make such preparation, and failure to do so is suffi- cient to authorize a recovery for damages sustained thereby. McKeon v. Chicago, M. & St. P. R. Co., 94 Wis., 477. §332. Unguarded frogs. Leaving a frog unguarded, although contrary to statute, is not such an offense as will, at common lav^f, take away the defense of contributory negligence. Holum v. Chicago, M. & St. P. R. Co., 80 Wis., 299. §333. Unattended moving cars in company's yard. The mere fact that in a railroad company's private yard, where cars are loaded and unloaded and trains made up, such cars are permitted to move along the tracks unattended by a brakeman, cannot be held negligence as matter of law, as against the company's servants employed in such yard. Kelley v. Chi- cago, M. & St. P. R. Co., 53 Wis., 74. §334. Injury to person riding on hand-car. Plaintiff, having been at divers times employed by defendant as a detective in cases of property stolen from its cars, was requested by defendant's agent, duly authorized' for that pur- pose, to go from one station on defendant's road to another to aid in discovering persons who had stolen property from defend- andt's^ cars at the latter station; and the means of conveyance furnished by defendant was a hand-car. Held, that defendant was liable for any injury to plaintiff' while riding upon said car, caused either by the unfitness of such means of conveyance or by any negligence of defendant's servants in running the same, as by carelessly running it at a dangerous rate of speed. Pool V. Chicago, M. & St. P. R. Co., 53 Wis., 657. §335. Duty of stoppage near crossing. Under Sec. 1808 R. S. it is not necessary that the engine should be stopped at or before the 400-foot post, but between that post and the tjack of the railroad to be crossed. Lockwood V. Chicago & N. W. R. Co., 55 Wis., 50. §336. Presumption of negligence from derailment of car — how rebutted. If there is any presumption of negligence on the part of the 83 §337"339 NEGLIGENCE OF RAILWAYS. defendant from the car on which deceased rode being ofif the track before he fell, it makes ont a mere prima facie case, which is overthrown and the burden of proof shifts when the defendant shows that the track, cars, engines, brakes and other appliances were in good condition, and the train properly manned and not run at a dangerous speed ; then the burden of proof falls on plain- tifif to show that the negligence of defendant caused it to leave the track. Lockwood v. Chicago & N. W. R. Co., 55 Wis., 50. §337. Breaking of embankment — rush of water. In an action against a railroad company for damages caus- ing death of the plaintiff's intestate it appears that he lost his life by being carried away in a rush of water and debris caused by a railroad embankment, where he was at work, giving way. Defendant's superintendent did not warn deceased of the risk, not knowing of it, and the latter was working within a pace of the solid bank where he could retire in a few seconds and be out of reach of all possible danger. Held, defendant not guilty of negligence. Schadewald v. Milwaukee, L. S. & W. R. Co., 55 Wis., 569. §338. Re-trial — additional facts — question for jury. It having been decided upon a previous appear that the allegations in the complaint of the plaintiff shows negligence on the part of the plaintiff, the additional facts brought out upon a re-trial are not deemed sufificient to justify the court in taking the question of neghgence from the jury. Pool v. Chicago, M. & St. P. R. Co., 56 Wis., 287. §339. Carrying passenger by hand-car. Plaintiff was in the employ of defendants as a detective, and was directed by the authorized agent of defendant to come at once from P — to K — , two places upon the line of road of defendant company, and upon his arrival at the depot at P — found an ordinary hand-car used in working on the defendant's track to convey him to K — , and upon being directed by defend- ant's authorized agent, he placed himself upon said car for the purpose of being carried to K — , but owing to the negligence of defendant's agent in managing said car, the plaintiff was injured. Held, that it was the duty of the company to have its road bed in such a condition that the hand-car could safely be propelled thereover, and that, in the absence of evidence to the contary, it is to be presumed that such car was furnished plain- 84 / ACTIONABLE NEGLIGENCE. §340-346 ' tiff by the authorized agent of defendant. Pool v. Chicago, M. & St. P. R. Co., 56 Wis., S37. §340. Use of tracks on highways. Sections 1828 and 1836 R. S. were intended to give railroad companies the right to use highways for passage over the same with their cars and engines, but were not intended to confer on such companies the right to use such highways for depot pur- pose's of any kind. Bussian v. Milwaukee, L. S. & W. R. Co., 56 Wis., 325. §341. leaving car on track on highway. Leaving a car in the street for several days near the traveled track, even if not negligence in law, is certainly evidence tend- ing to prove negligence on the part of the company. A liability is not evaded by the fact that such can belongs to and was so placed by another company. Id. §342. Use of tracks on highway. Although a railway company may have the right to construct and maintain a switch track in a highway, still it is not author- ized to use such track for the purpose of storing its cars, or to use it in any manner inconsistent with the right of the public to the use of such highway. Id. §343. Fences — ^right to take timber for, from adjoining grounds. A railroad company has no right to take timber poles or other fencing material from the land adjoining its right of way for the purpose of repairing its fences when such land is not owned by it. Carey v. Chicago, M. & St. P. R. Co., 61 Wis., 71. ■ §344. Same — ^police power. Sec. 1810 R. S., making railroad companies absolutely liable for all damages to persons, cattle or other animals, occasioned by want of fences or cattle guards, is within the pojice power, and is valid. Quackenbush v. Wisconsin & M. R. Co., 62 Wis., 411. §345. Meaning of "persons." The word "persons" in such statute was intended to include and does embrace employees of the railroad company. Id. §346. Running switches — question lor jury — instructions. The making of running switches where railroad tracks cross a public highway in populous villages is a most dangerous pro- 85 §347"350 NEGLIGENCE OF RAILWAYS. ceeding, and requires a high degree of care to prevent accidents to person and life, and it is peculiarly the province of the jurv to determine from the surrounding circumstances whether a proper degree of care was employed. Hence it was not error to refuse to instruct the jury that "failure to have guards or a fiagtnan at the crossing is not evidence of negligence, and can- not be considered by the jury." Ferguson v. Wis. Cent. R. Co., 63 Wis., 145. §347. Maximum rates. The valdity of Ch. 273, Laws of 1874, so far as it prescribes maximum tolls for the carriage of persons and property over the railways of this state, is no longer an open question. Hinck- ley V. Chicago, M. & St. P. R. Co., 38 Wis., 194. §348. Duty to female passenger. A railroad company is bound to protect female passengers on its trains from all indecent approach or assault; and where a conductor on the company's train makes such an assault on a female passenger, the company is liable for compensatory dam- ages. Craker v. Chicago & N. W. R. Co., 36 Wis., 657. §349. Farm crossings — evidence. In an action for injuries, alleged to have been caused by the defective condition of a farm crossing on defendant's road^ a witness for plaintiff, having testified as to the condition of such crossing and having stated, on cross-examination, that he had also a farm crossing on his land, and that it was in the same condition as the one at which plaintiiTs were injured, was asked by defendant's counsel "whether he carried his crops over this crossing that year." Held, that there was no error in overruling the question; first, because it was not proper cross-examina- tion ; and secondly, because it tended to raise a side issue. Grasse V. Milwaukee, L. S. & W. R. Co., 36 Wis., 582. §350. liability as to farm crossings. Where a railroad company agrees to maintain, and does maintain, two "farm crossings" on a single farm, its obligation in respect to both, as to keeping them in a condition to afford a reasonably safe crossing for the occupants of the farm, is the same as it would be in the case of the single crossirig required by the statute (Laws of 1872, ch. 119, sec. 30). Id. 86 ACTIONABLE NEGLIGENCE, §351-354 §351. When company chargeable with knowledge of facts known to conductors. The owner of certain goods and horses destined for the vil- lage of L. shipped them in a box freight car of defendant. The owner rode in the caboose of the train, and the plaintiff^ who was in the owner's employ", rode in the car with the horses and goods, to A. His fare was paid through to L., although the conductor had not authority to collect for that point, it being beyond his run. Some hours after arriving at A., plaintifif again went into said box car, without the knowledge or consent of the conductor or other train employees. Before -the train started, the car was locked by defendant's employees^ and plaintiff did not make his presence known. After the train had started, the goods took fire through sparks from the locomotive, plaintifif was severely burned, and brought action against the company for damages. Held, defendant not chargeable with notice of plaintiff's presence in the box car at the time of the injury merely by reason of the knowledge possessed by the first conductor. Jenkins v. Oiicago, M. & St. P. R. Co., 41 Wis., 113. §352. Imperfect brake-rod — ^latent detect. In an action against a railroad comt)any by one of its brake- men, who had been injured by the breaking of a brake-shaft or rod, the jury found specially that the defendant was negligent in not having applied a proper and sufficient test to the rod.- It appeared that the rod broke near the platform, under the cog- wheel, from an old crack or flaw constituting a latent defect; defendant's evidence tended strongly to show the exercise of great care on its part in the inspection of its cars, and the selec- tion and testing of the materials used therein, and there was no contrary testimony. Held, no evidence tO' support the finding. Smith V. Chicago, M. & St. P. R. Co., 43 Wis., 530. §353. Married woman — action for causing death of. Under Sections 13 and 13 of Chapter 135 R. S. 1858, an action lies for injuries done to a married woman by the wrong- ful act, neglect or default of another person, resulting in her dfeath. Whiton v. Chicago & N. W. R. Co., 31 Wis., 305. §354. Liability for 'personal injuries. A railroad company is liable for negligently injuring per- sons lawfully on or around its cars, even after its liability as a carrier to them as passengers has ceased^ a reasonable time hav- 87 §355"359 NEGLIGENCE OF RAILWAYS. ing elapsed for them tO' leave the train after Arriving at its des-^ tination. Imhoff v. Chicago & M. R. Co., 22 Wis., 682. §355. Injury to property — interest. For injuries to property, interest may be recovered from the commencement of the action, on the immediate damages (Chap- man V. Railway Co., 26 Wis., 395); but whether an allowance of interest from the date of the injury would be upheld in any case, and, if not, whether such allowance of interest upon a sum less than $45 for a few months would justify reversal of a judg- ment, qiuaere. Dean v. Chicago & N. W. R. Co., 43 Wis., 305. §356. Appointment of administrator to bring action for injuries causing death. In an action by an administrator for injuries causing death the complaint alleged that plaintiff's intestate left no property. The answer denied the appointment of the administrator. Under Sec. 4256 R. S. the action could only be brought by and in the name of the personal representative of the deceased, and there was no error in admitting in evidence the letters of administra- tion issued to the plaintiff. Phillips v. Chicago, M. & St. P. R. Co., 64 Wis., 475. 357. Open ditch in switch yard. It cannot be said, as a matter of law, that leaving an open ditch between two ties, about eight inches deep and ten inches wide, where a switchman would naturally walk, is not negligence. Hennesy v. Chicago & N. W. R. Co., 99 Wis., 109. §358. Broken jaw-brace — notice of defect. The facts that the foreman of the gang in which plaintiff was engaged, directed him, after turning a switch, to mount the sec- ond car from the engine for the purpose of aiding in sending the unloaded cars down to the repair shop, and that plaintiff was injured in mounting said car in consequence of its having a broken jaw-brace, are not sufficient to warrant a jury in finding the defendant company guilty of negligence, where there is no evidence that such foreman was charged with the business of inspecting the cars, or knew of the defect in said car, or had any better' means of knowledge than the plaintiff. Flanagan v. Chicago & N. W. R. Co., 50 Wis., 462. §359. Shunting oars in village street — no warning. Where a train, in passing through a populous village, was cut ACTIONABLE NEGLIGENCE. §360-362 in two, and the ten rear cars, being separated from the ten front cars and engine by a distance of fifteen or twenty rods, while running across a public street struck and killed plaintiff's intes- tate, there being no person on the front car of said rear section on the lookout for and ready to warn persons approaching, and no flagman at the crossing. Held, that these facts were evidence of gross negligence on the part of the company. Butler v. Mil- waukee & St. P. R. Co.. 38 Wis., 487. §360. Freight train near station — open cattle-guard. About half-past nine o'clock on a dark, rainy and snowy night, plaintiff went to defendant's depot at a village, for the purpose of taking the caboose car at the rear end of defendant's freight train, for his place of residence. The train stopped with the caboose car several rods north of the depot platform, and two car-lengths north of a cattle-guard, which was constructed across both tracks of the road and between them, and was partly uncovered. Plaintiff asked the night-watchman whether he would have to walk that far back to get on the caboose, and was answered affirmatively; and while on his way to the caboose met the conductor with a lantern accompanying lady passengers from the caboose; nothing was said to him by the conductor; and before plaintiff reached the caboose, he fell into the open cattle-guard, and was injured.. He had been in the habit of tak- ing this train with the caboose standing north of the platform, but had never taken it with the caboose standing north of the cattle-guard, nor did he know before the accident that the caboose stood north of it. Held, that these facts warranted the • jury in finding that defendant was guilty of negligence, and plaintiff free from contributory negligence. Hartwig v. Chi- cago & N. W. R. Co., 49 Wis., 358. §361. Same — same — construction and location of. The question whether the cattle-guard was properly situated and constructed, is immaterial in such a case, defendant being chargeable with negligence on the facts stated, independently of that question. Id. §362. Highway — changing cause of action on appeal. In an action against a railway company for damages for causing the death of plaintiff's horse, where the trial was upon the issue of highway or no highway, the action cannot in the ' , 89 " ^3^3'3^7 NEGLIGENCE OF RAILWAYS. appellate court be changed into one to try the question of defec- tive fencing. Hunter v. C. St. P. M. & O. R. Co., 99 Wis., 613. §363. Damnum absque injuria — noises incidental to operating train. Where injuries result from the frightening of horses by the sight of moving cars, trains or locomotives, or the usual noises or incidents of their ordinary operation, that there is no liability on the part of the railway company is firmly established and recognized as the law. Abbot v. Kalbus, 74 Wis., 504; Cahoon v. Chicago & N. W. R. Co., 85 Wis., 570; Flaherty v. Harrison, 98 Wis., 559; Dewey v. Chicago, M. & St. R R. Co., 99 Wis., 455. §364. Intoxication. Whether plaintiff was drunk or sober at the time of the acci- dent is immaterial, if there was not the least want of common care and prudence on his part. Ward v. Chicago, St. P. M. & O. R. Co., 85 Wisl, 601. b. Fences and depot grounds. ' §365. Fences — ^liability for leaving, down. If defendant allowed its fence, at a point on the line of its railroad, to remain down for a long time, its agents knowing the fact and having time and opportunity to make the repairs, and plaintiff's colts, without contributory negligence on his part, got upon the track through such opening, and were damaged, defendant is liable therefor. Laude v. Chicago & N. W. R. Co., 33 Wis., 640. §366. Same — same. The facts that one E., through whose land defendant's road runs at the point in question. Had let down the fence and left it open for the purpose of drawing wood through it to the rail- road track, and that it was winter, when horses are not usually allowed to go at large or wander through the fields, and that it had been usual to leave the fence open in like manner and for a like purpose during previous winters, would not excuse defendant, as against plaintiff, from the absolute duty imposed by the statute, to maintain the fence, though the fact first men- tioned would excuse defendant as against E. Id. §367. Same — evidence. And the fact that plaintiff had, in former seasons, used the 90 FEI^CES AND DEPOT GROUNDS. §368-372 opening in the fence thus made by E., for the purpose of draw- ing wood to the railroad, was no evidence of his consent to the maintenance of such opening, which would relieve the company from liability. Id. §368. Same — duty to keep in safe condition. Under the statute requiring railroad companies to fence their tracks, and making them absolutely liable for injuries to domestic animals straying thereon in case of their neglect to do so, such companies are bound to exercise a high degree of diligence in keeping their fences in a safe condition. Antisdel v. Chicago & N. W. R. Co., 26 Wis., 145. §369. Same — police power — waiver — knowledge of em- ployees. In an action for death of plaintiiif's intestate, alleged to have been caused by the failure of defendant to fence its road as required by law, the deceased, under Sec. 1810 R. S., did not .waive the right to Recover of defendant for injuries caused by want of a fence, through remaining in its employment with knowledge that the road was unfenced. Quackenbush v. Wis- consin & M. R. Co., 62 Wis., 411. §370. Same — ^liability for injury to persons. Where an infant of eighteen months gets upon a railroad track in consequence of the failure of the railroad company to erect a fence as required by law, the parents being in the exer- cise of ordinary care, the company is liable for the injuries received. Schmidt v. Milwaukee & P. du C. R. Co., 23 Wis., 186. §371. Same — ^liability for failure to maintain. Under the statute, a railway company is absolutely liable for all damages to cattle occasioned by its failure to erect and main- tain fences as therein required. So held in a case where the plaintifl's cattle were placed in a close adjoining the railroad track which had been partially destroyed by fire; and it is no defense to an action against the railroad company in such a case ihat the plaintiff had trespassed upon the defendant's track in driving his cattle to said close — such trespass not being con- nected with the subsequent acts by which they were killed. Sika v. Chicago & N. W. R. Co., 21 Wis., 370. §372. Same — same — sudden destruction of. , Where a railway company fails to maintain as well as erect, 91 ^373'377 NEGLIGENCE OF RAILWAYS, such a fence as the statute requires, along the line of its road, its liability for injury to animals which get upon the track in consequence of such failure, is absolute; but should such fence be suddenly destroyed by unavoidable accident, the company would not be subject to absolute liability, in case immediate steps were taken to rebuild. Brown v. Milwaukee & P. du Ch. R. Co., 31 Wis., 39. §373. Same — same. In the absence of evidence that plaintiff abandoned his horses in a place where it was certain they would go on defendant's right of way, or that he drove them thereon, the company is liable for the killing of such horses when it has failed to erect fences and cattle guards as required by law. Heller v. Abbot, 79 Wis., 409. §374. Same — same — ^police power. Chapter 168, Laws of 1860 (1 Taylor's Stat. 1044), which requires railroad companies to fence their roads, would be valid as an exercise of the general police power of the legislature, without the existence of Sec. 1, Art. 11. of the Constitution of this state, by which the legislature is authorized to alter or repeal all general laws or special acts creating corporations under that section. Blair v. Milwaukee & P. du C. R. Co., 20 Wis., 362. f375. Bame — same. Any person who, without fault on his part, is injured by reason of the neglect of a railrbad company to fence its road (except at its depot grounds and across highways) may recover the damages thereby sustained, without proof of any other negli- gence on the part of the company. Blair v. Milwaukee & P. du C. R. Co., 20 Wis., 262; Also Bennett v. Chicago & N. W. R. Co., 19 Wis., 145; Brown v. Milwaukee & P. du €. R. Co., 31 Wis., 39, and Antisdell v. Same, 26 Wis., 145. §376. Same — object of statute. The chief object of the statute requiring railroads to fence their right of way is to secure the safety of passengers upon rail- road cars. Blair v. Milwaukee & P. du C. R. Co., 20 Wis., 262; also Schmidt v. Milwaukee & P. du C. R. Co., 23 Wis., 186. §377. Same — same. The object of the statute requiring railroads to fence their tracks is the protection of the public generally, and not merely 92 FENCES AND DEPOT GROUNDS. §378-382 to regulate the division fences between the company and the adjoining land owners. McCall v. Chamberlain, 13 Wis., 637. §378. Fences — destruction of, by flood — question for jury. There had once been a sufficient fence between defendant's track and plaintiff's land, which had been thrown down or destroyed by an unusual flood, which was at its height about eight days before the horses were injured on June 27. The water began to fall June 20, and from that day to the 38th, inclusive, had fallen 4 feet 9 inches. On the 25th it fell 8 inches, on the 26th, 8; and on the 27th, 7, and on the latter day had not subsided so as to leave the entire- line of the fence between plain- tiff's land and defendant's track uncovered by water. The jury found the fence could reasonably and properly have been con- structed two days before the flood. Held, impossible to impute actionable negligence to defendant and the question as to its negligence should not have been submitted to the jury. Goddard v. Chicago & N. W. R. Co., 54 Wis., 548. §379. Same — statute applies to private logging roads. Sec. 1810 S. & B. Ann. Stats, requires all railroad corpora- tions to erect and maintain fences and cattle guards to prevent cattle and other domestic animals from going on such track. This statute applies to private logging roads as well, and requires the erection and maintenance of such barriers along the entire track, depot grounds and highway crossings excepted. Caldon V. Chicago, St. P. M. & O. R. Co., 85 Wis., 527. §380. Same — diligence in repairing. A railroad company is bound only to the use of reasonable diligence in the repair of its fences. Carey v. Chicago, M. & St. P R. Co., 61 Wis., 71. §381. Same — cumulative statutes. Sees. 30 and 31, Ch. 119, of Laws of 1872 (requiring rail- roads to be fenced, and declaring the liabilities of companies for injuries to domestic animals occasioned by failure to fence), are not repealed or modified by Ch. 248 of 1875; but the pro- visions of the latter are cumulative to those of the former. Curry V. Chicago & N. W. R. Co., 43 Wis., 665. §382. Same — ^killing horses — negligence of third person. A gate in a fence along a railroad right of way, when prop- erly fastened, was of the proper height, but if not raised so 93 §383'386 NEGLIGENCE OF RAILWAYS. that the hook would catch, it would' be much lower at one end. One evening it was improperly closed by the negligence of a third person and two of plaintiff's horses thereby got on the track and were killed. It appeared that one of the hooks upon which the gate rested when closed, was out of place. Held, neither the absence of such hook or the negligence of the third person made the railroad company liable. Davenport v. Chi- cago, B. & N. R. Co., 76 Wis., 399. §383. Same — adjoining landholders. In the absence of a statute requiring it, it is generally well settled that railroad companies are not obliged to fence between themselves and adjoining landholders. Stucke v., Milwaukee & Miss. R. Co., 9 Wis., 202. §384. Same — Pliability of defendant. Action for killing plaintiff's horses. The law made it the duty of defendant company to fence every part of the road within one year after it should commence operating it. The part where the horses were killed had been in operation more than a year, and was not fenced. It was held, the company was liable for the killing, without regard to the question whether they were negligent in managing their cars, or whether the ani- mals were rightfully or wrongfully upon the adjoining lands from which they had passed upon the track. McCall v. Cham- berlain, 13 Wis., 637. §385. Fencing right of way — purpose of. The purpose of a railroad fence, as required by Sec. 1810, R. S., is "to prevent cattle and other domestic animals from going on such railroad," and not, primarily, to prevent persons. But if to exclude persons from going on the track is a purpose of the fence, then the same rules should apply as in the case of domestic animals, and in order to show that the absence of the fence was the cause of the injury, it must be made to appear that the person came upon the track at a point where the defendant wTas bound to maintain a fence. Wickham v. Chi- cago & N. W. R. Co., 95 Wis., 23. §386. Depot grounds — what constitutes. Proof that ordinary trains must run to a certain point beyond a switch near a depot, in order to switch off to a side track on the depot grounds, held, not to be conclusive that the track from said switch to said point was within the depot grounds, 94 FENCES AND DEPOT GROUNDS. §387-391 SO as to justify the court in setting aside a contrary verdict. Fowler v. Farmers' Loan & Trust Co., 23 Wis., 78. §387. Same — same — question for jury. About 1,400 feet north of defendant's depot building a side track terminated irf a switch, and a short distance north of the switch is a cattle guard, and from that point northward the right of way is fenced, but remains unfenced for one-half mile southward. A short distance south of the switch, a' highway intersects the road, at which point it was the custom to load and unload freight. Between this point and the switch, plaintifif's animals got on the track and were killed. Held, a question for the jury whether the place where the animals got on the track was part of the depot grounds. Grosse v. Chicago & N. W. R. Co., 91 Wis., 483. §888. Same — question for jury. The question as to whether the defendant's right of way at a point 60 rods from the station, where there was a side track besides the main track, was used in connection with the depot for the loading or unloading of freight, or necessary or con- venient or actually used for such purposes, so as to be included in the depot grounds which defendant is not bound to fence, was essentially one proper for the jury, and not for the court. Dinwoodie v. Chicago, M. & St. P. R. Co., 70 Wis., 160. §389. Same — requirements for. The "depot grounds" which, under the statute, are not required to be fenced, must be necessary, convenient, and actually used for such purpose. Grosse v. Chicago & N. W. R. Co., 91 Wis., 483. §390. Same — ^what are — killing stock. A place where passengers get on and off trains, where goods are loaded and unloaded, where cars are set out upon side tracks, to be loaded and unloaded, and stored, and again taken up in trains, is "depot grounds," although there is neither depot building or station agent there. Mills & Le Clair Lumber Co. v. Chicago, St. P. M. & O. R. Co., 94 Wis., 336. §391. Same — same — same. In an action for killing horses, it was shown that the defend- ant formerly kept a certain station, but had since discontinued it, and the depot building had been closed up and gone to decay. There was a side track there, where trains passed each other, 95 §392-394 NEGLIGENCE OF RAILWAYS. and where the defendant rtceived charcoal and transported it, but no depot grounds outside of the usual right of way. The company had put in cattle guards 350 feet south of station build- ing, and 731 feet north of it, between which points the track was not fenced. The court assumed the defendant had "depot grounds" at the point where the station was located, and sub- mitted to the jury the question as to whether the horses went on to the track where they were killed within the limits of the depot grounds, and they answered. No. The defendant was not prejudiced by such submission, and the evidence was suffi- cient to sustain their finding., McDonough v. Milwaukee & N. R. Co., 73 Wis., 223. §392. Same — same — fences. Grounds at the side of the main track upon which are a water tank for replenishing engines, a building containing a telegraph office with instruments, a ticket office, a place for eat- ing and sleeping, occupied by the company's stationmen, and' agent who operated the telegraph, sold tickets for the company to passengers, operated the switch and tank, and handled bag- gage and freight; there being a platform between the building and track, where trains stopped and received and discharged passengers and freight, are "depot grounds," which do not require to be fenced under Sec. 1810 R. S., as amended by Ch. 193, Laws of 1881. Peters v. Stewart, 72 Wis., 133. §393. Same — ^what are not — killing horses. In an action for killing horses on a railroad track, evidence showing that they came on a track where a plat had recently been laid out; that there were only two houses and a store on the plat, and that nothing had been done by the company to make depot grounds except to remove the fence; that there was a side track, and a platfbrm on the main track, but no depot, agent, clerk or employee; that freight was thrown off anywhere along the main track, and trains to receive freight stopped only on being flagged; freight had to be billed to next station north or south, and passengers had to procure their tickets at or for those points, and everyone wishing a train to stop did his own flagging — is sufficient to justify the trial court in holding the place was not "depot grounds." Anderson v.' Stewart, 76 Wis., 43. §394. Same — same, A mere side track, used only for loading and shipping tan 96 CROSSINGS. §395-398 bark, with no highway leading to it, and having no depot build- ing or platform to receive passengers and freight, no scales for weighing freight, no water tank, no agent and no station name, is not "depot grounds" within the meaning of the statute. Jae- ger V. Chicago, M. & St. P. R. Co., 75 Wis., 130. §395. Same — same. The place of the accident was in the neighborhood of a depot, but out on the main line of the road, where there was but a single track, more than a Ihundred yards beyond the switch, and beyond where a cattle guard was subsequently placed, and the road at that place was fenced by the company soon after the accident, and continues to be so fenced. Held, that although long trains, in switching, run out to the place, it could not be considered a part of the depot grounds. Blair v. Milwaukee & P. du C. R. Co., 20 Wis., 262. c. Crossings. §396. Dangerous speed at — ^unincorporated village. Section 4972, , Revised Statutes, Subdivision 5, limits the rate of speed of trains in cities and villages and was not appli- cable to the present case, because the village was npt incorpo- rated, yet it was a question for the jury whether undfer the cir- cumstances the speed was negligently high. Heath v. Stewart, 90 Wis., 418. §397. Failure to ring bell — nonsuit. In an action for damages caused at crossing, there was tes- timony from which the jury might have found that no bell was rung or whistle sounded until the locomotive reached the crossing. On apypeal from a judgment of nonsuit, held, that upon this evidence the question of defendant's negligence should have been left to the jury. Duffy v. Chicago & N. W. R. Co., 32 Wis., 269. §398. Ringing bell at. In an action against a railroad company for damages received at a highway crossing, plaintiff testified that as he approached the crossing with his team along the highway he heard no bell or whistle and could not see defendant's train on account of a high bank which intervened. Held, that upon this evidence it was a question for the jury as to defendant's 7 97 §399"4<32 NEGLIGENCE OF RAILWAYS. negligence in failing to give proper warning. Roberts v. Chi- cago & N. W. R. Co., 35 Wis., 679. §399. Duty to blow whistle. Although the statute did not require the whistle to be blown at the place of accident, still, if those in charge of the train saw the plaintiff approaching the crossing and about to go upon the track, believing that he was unaware of the train's approach, it would be their duty to sound the whistle as well as to take every other reasonable precaution to prevent the coIt lision. Piper v. Chicago, M. & St. P. R. Co., 77 Wis., 347. §400. Duty to keep lookout. Plaintiff, a 13-year-old boy, was injured in depot grounds by defendant's train' of 40 freight cars, some of which were behind the caboose, backing slowly down on a side track and with little noise. The accident occurred at dusk, and at a place where defendant's servants knew many people were likely to be on the track. Although the lights of the train were burn- ing, the conductor and brakeman using lighted lanterns, and the train was being operated in the usual manner, yet the fail- ure to provide a lookout at the rear of the train to iwam people of danger, was negligence. Whalen v. Chicago & N. W. R. Co., 75 Wis., 654. §401. Same. "A railroad company must provide for a careful lookout in the direction that the train is moving in places where people, and especially where children, are liable to be upon the track. _ If they do not, and a person has been injured, then the company may, in the absence of contributory negligence, be held liable." Townley v. Chicago, M. & St. P. R. Co., 53 Wis., 626; John- son V. Chicago & N. W., 56 Wis., 274; Heddles v. Chicago & N. W. R. Co., 74 Wis., 239. §402. Same. In an action against a railroad company for killing a boy on its track while he was attempting to cross it at a place much used by pedestrians, the engineer testified that he kept a proper lookout, but did not see the boy, because of his being concealed from view by a passing freight train going in an opposite direc- tion on a parallel track, until within a few feet of him. Such failure to see was not inconsistent with keeping a proper look- out. Wickham v. Chicago & N. W. R. Co., 95 Wis., 23. 98 CROSSINGS. §403-405 §403. Proper construction of railroad at. In an action against a railroad company for injuries inflicted by defendant's train at a highway crossing, upon a person traveling on such highway, the question whether the railroad was constructed with proper care, so as to render the crossing" as little dangerous as possible to the public in the use of the highway, is a pure question of fact for the jury, upon the evi- dence. Duffy V. , Chicago & N. W. R. Co., 33 Wis., 369, approved and reaffirmed; Roberts v. Chicago & N. W. R. Co., 35 Wis., 679. §404. Accident at-r-restoring highway. A railroad track, coming from the north, approached a highway at a point within the limits of a city, through a deep cut, and the highway, which had run over a hill, was excavated by the railroad company down to the level of the track, leaving a high bankiof earth in the northeast angle, which prevented a person approaching along the highway from the south from seeing a train coming from the north until almost on the track. In an action for injuries received from a train at this point by one driving a team attached to a wagon, coming along the highway 'from the south the evidence tended to show that the highway, just south of the crossing, ran between a ditch on the left and the bank on the right, and was too narrow for such a team to turn safely; also, that one driving along the high- way from the south could not see along the track northward' until his team was 'upon the track. Held, that from this evi- dence the jury might have found that defendant had failed to do its duty in restoring the highway "to its former usefulness," as required by law. Duffy v. Chicago & N. W. R. Co., 33 Wis., 2G9. §405. Same — same. Where there was a deep ditch within the limits of the high- way and the railroad right of way just south of the traveled portion of the highway as it approached the point of crossing and said ditch was the cause of the accident, it is nevertheless not sufficient to charge the railroad company, under Section 1836 R. S., which requires the railway company constructing its road across or upon any highway, to restore such highway TO its proper state, in the absence of any evidence showing that the ditch was constructed or caused by the building of the rail- road. Sutton V. Chicago, St. P. M. & O. R. Co., 98 Wis., 157. 99 §406-410 NEGLIGENCE OF RAILWAYS. §406. Same— same. Where two witnesses acquainted with the locality testified that they were acquainted with the highway at the point o! the accident before the railroad was built, and one of them stated that it was traveled at that time, this testimony is suffi- cient to establish prima facie the fact that the highway existed at the time the railroad was constructed over it, so that Section 1836 R. S. would not apply. Id. §407. Same — duty to give warning. Where a railroad train passes over a highway crossing in such a manner as to induce travelers on the highway to believe the train will continue in that direction, it should not be imme- diately backed down without a previous caution or signal being given, and it is the duty of the company to have some one in place to prevent persons frcim then attempting to make the crossing. Duame v. Chicago & N. W. R. Co., 72 Wis., 533. §408. Absence of flagman. The neglect to place any person at a street crossing fqr' the purpose of warning people of danger at that place maj be shown as an item of evidence to be considered by the jury in connection with all the other evidence in the case, upon thd question of the defendant's prudence or negligence in moving the train at the time or place in question. Abbot v. Dwin- nell, 74 Wis., 514; Hoye v. Chicago & N. W., 67 Wis., 1, 15; Winstanley v. Chicago, M. & St. P., 72 Wis., 375, 381; Butler V. Milwaukee & St. P., 38 Wis., 487, 498; Kinney v. Crocker, 18 Wis., 74, 83. §409. Same — unlawful rate of speed. ^ Where a traveler on a public street in a city approaches a railway crossing, and nothing appears to the contrary, he may properly assume that a train is moving at a lawful rate of speed, and if it transpires that such speed was unlawful, that fact may be taken into consideration in considering the ques- tion of contributory negligence. Langhofif v. Milwaukee & P. du C, 19 Wis., 489; Piper v. Chicago, M. & St. P. R. Co., 77 Wis., 247. §410. Same — contributory negligence. Plaintiff drove across a railroad track immediately after the passage of a train without looking in the direction from which it came, and was struck by a car which had been detached 100 CROSSINGS. §411-414 from the train ' and was making a flying switch. Held, nor guilty of contributory negligence. Ward v. Chicago, St. P., M. & O. R. Co., 85 Wis., 601. §411, Same — gross negligence of defendant — flying switches. The conductor of the train was on the car, and saw the plaintiff approaching the crossing >vhen the car was from 50 to 70 feet from it. He let the car run wjthout setting the brakes because he thought he could get over the crossing before plain- tiff reached it, but hallooed to the plaintiff, who did not hear. Held, guilty of gross .negligence. Id. NOTE! — ^Flying switches, law relating to, discussed In above case. §412. Same — killing child at — questions for jury. . Where a boy of seven was run over and killed at a high- way crossing by defendant's train, there was conflicting evi- dence as to whether defendant's engineer or fireman could have avoided the accident, and the question of defendant's negli- gence in this respect, as well as the qustion of contributory negligence of the deceased or his father were properly for the jury. Johnson v. Chicago & N. W. R. Co., 64 Wis., 425. §413. Same — same — finding sustained by evidence. Plaintiff's intestate got upon defendant's track at a farm crossing, either through an open gate, or an opening ■ twenty inches wide at the end of the gate, and was killed. The jury found specially that the boy passed through the opening m going on the track. Held, warranted by evidence. Stuettgen v. Wisconsin Cen. Co., 80 Wis., 498. / §414. Same — same — same. The operation of a railway over and along public high- ways in a village or city being necessarily attended with great peril to human life and property, railway companies are held to the utmost care on the part of their servants to avoid inflict- ing injury under such circumstances. And in this action against a company for the killing of a child of six years by a train while crossing a city street, a judgment of nonsuit is reversed on the ground that the questions of negligence on defendant's part, and contributory negligence of the child or its parents^ should have been submitted to the jury, on the evi- dence. Johnson v. Chicago & N. W. R. Co., 49 Wis., 529. 101 §4I5-4I7 NEGLIGENCE OF RAILWAYS. §415. Same — ^injury to child — same. Plaintiff's intestate, a boy of eight and one-half years of age, was run over and killed by defendant's freight train. In an action to recover damages, the evidence showed that the defendant had three tracks at the place of the accident, there being a higEway up to the tracks on either side. Although no highway was extended across the tracks, the defendant had planked them, and they with the space between the tracks, had' been used by the inhabitants indiscriminately for crossing pur- poses, and by the children for play, with the knowledge and consent of defendant. Deceased tried to climb through the opening between two cars standing on the crossing, when th^ train started with a jerk, and he was thrown down and killed. There was a dispute as to whether signals were given, and no trainman knew of the accident at the time. The question of defendant's negligence and of contributory negligence on the part of the deceased were properly for the jury. Carmer v. Chicago, St. P. M. & O. R. Co., 95 Wis., 513. §416. Same — ability of engineer to avoid — same. Deceased was on a road crossing 8 or 9 feet from railroad track, driving an unhitched team, when he first discovered a locomotive and tender approaching, 164 feet away. The loco- motive came at a high rate of speed which deceased had no means of knowing. When 540 feet away from the crossing, the engineer saw deceased and his team, the heads of the horses being 8 or 9 feet from the track, headed as if they were going to cross, but he did not think they would cross. The engineer testified that they were then standing still, but when he got within a few yards of them; deceased "made a dive to get across," and that he did not sound the -whistle for fear of frightening "the team onto the track; that after striking them, he reversed the engine and stopped withi'ii a distance of 350 feet. Another witness testified the team did not stop or stand still after starting towards the crossing, until they were struck. Held, q-uestion for a jury to determine whether the engineer, after discovering the negljgence of deceased, if any, could not, by the exercise of reasonable care and diligence, have avoided the accident. Valin v. Milwaukee & N. R. Co., 83 Wis., 1. §417. Same — warning— custom. Plaintiff was employed as a section hand to work about 102 CROSSINGS. §4173-418 defendant's depot yard in a city, and while he was engaged under direction of defendant's foreman, in driving a spike to hold a rail on one of the tracks in the yard, an engine, used in the yards to make up trains, backed cars along the track on which he was at work with his back toward the train, and struck and injured him. The special verdict was, that plaintifiE hi&^ when driving the spike, that the switch engine was switch- ing cars and making up trains in the yard, and was liable to be run on any track, but did not know that the cars were being put upon the track on which he was at work; that it was the custom for the engineer to ring the bell on the switch engine while it was in motion; that the bell was rung, and heard by the plain tifif 5 minutes before he was injured, as the engine passed along a side track to his rear, but was not rung after the engine commenced backing toward him; that he had no reason to assume that it would not be run on the track where he was at work; that it was necessary for plaintiff, when driving the spike, to stand with his back to the approaching train; that, when taking that position, he did not look or listen for the train; and that, if he had done so, he might have avoided the injuries. The jury further found that the engineer of the switch engine was negligent in not ringing the bell when back- ing towards plaintiff; that plaintiff, under all circumstances, was not guilty of any want of ordinary care. Held, that the court cannot say, as a matter of law, that plaintiff was guilty of negligence in relying upon the custom as to ringing the bell, and so faiFing, under the curcumstances, to look or listen for the cars; and the question of contributory negligence was therefore for the jury. Ditberner v. Chicago, M. & St. P. R. Co., 47 Wis., 138. §417a. Same. It was also for the jury to determine whether the failure of the engineer to ring the bell was negligence. Id. §418. Crossing of private way — duty to erect warning sign and to sound whistle. Although the statute does not require a warning sign to be placed at the crossing of a railroad track with a private way, or the whistle to be blown, yet it may be a question for the jury whether the defendant was not guilty of negligence in omitting to do so. Winstanley v. Chicago, M. & St. P. R. Co., 72 Wis., 375. 103 §419-422 NEGLIGENCE OF RAILWAYS. §419. Operation of locomotive near street crossing. Where a locomotive was being operated in switching cars near a street crossing, and there was no evidence that it was improperly operated, nor attended by unusual and unnecessary noises, in an action for injuries caused by plaintiff's team becom- ing frightened and running away, it was error to refuse to instruct the jury that there was no evidence of negligence on part of defendant in the maagement of the locomotive. Abbot V. Kalbus, 74 Wis., 504. §420. Backing train across. ,Th^ question of negligence of defendant in backing a freight train across a street in a city, in the night time, without giving suiScient warning, and the question of the contributory negIi-( gence of the deceased, who was killed by defendant's train at such street crossing, were properly for the jury, under the peculiar circumstances stated in the evidence. Hoye v. Chi-" cago & N. W. R. C, 67 Wis., 1. §421. Frightening horses at — management of train. The evidence being that after defendant's train had for 10 or 15 minutes blocked a city street, and a number of teams, includ- ing plaintiff's, had gathered on the street, ready to cross, the train was backed down the street, and ' entirely hidden from plaintiff's sight by a building; that defendant's flagman sig- naled plaintiff to cross, but before he got across the tracks, the engine came back to the crossing, blowing off steam, and mak- ing a great noise, pausing plaintiff's team to run away, and causing the injuries complained of, — is sufificient to sustain a finding that defendant's servants were guilty of neghgence.' Kalbus v. Abbot, 77 Wis., 621. §422. Negligence of defendant — question for jury. In an action for injuries sustained by being struck by de- fendant's locomotive at a hig'hway crossing, it was shown that the night was dark, that on that very afternoon the railroad track had been raised, and only loose dirt thrown in outside of the rails, so that the wheels of a loaded wagon like that driven by plaintiff would sink in, and on striking the rails, would have to accomplish a perpendicular rise of from six to ten inches; that plaintiff, while engaged in trying to get his loaded wagon across the tracks, was struck by defendant's locomotive, which approached without any of the usual signals. Held, 104 CROSSINGS. §423-426 sufficient to warrant jury in finding defendant negligent. Mil- waukee & C. R. Co., V. Hunter, 11 Wis., 160. §423. Injury at highway crossing — nonsuit. In an action against a railway company for negligent in- jury to plaintiff's vehicle at a highway crossing, it appeared that the wagon was struck and injured by a locomotive dis- connected, running about five minutes in advance of a passen- ger train, due a short time before at such crossing. The loco- motive approached the crossing through a deep cut, several hundred feet in -length, and the embankment towards the ap- proaching train was covered with tall weeds and grass, and there was evidence that the locomotive or its smoke stack could not have been seen by the driver until he was 10 or 15 feet from the crossing. As to whether or not the bell was rung and the whistle was sounded the evidence was conflict- ing. Held, a nonsuit properly refused, and the question of negligence properly submitted to the jury. Bower v. Chicago, & St. P. R. Co., 61 Wis., 457. §424. Collision at highway crossing — duty to look and listen. Where a person driving along a highway within a few rods of a railroad crossing, sees a train passing the crossing in such a manner as would justify him in believing it will continue on in that direction, and will not immediately refum, the rule re- quiring him to look land listen before crossing is not applicable. Duame v. Chicago & N. W. R. Co., 72 Wis., 523. §425. Vigilance necessary while approaching track. A person approaching a railway track with his team and having reason to believe that a regular train had recently passed upon such track froim one direction, is not guilty of a want of ordinary care if he did not look in the direction from which such train would have approached all the time, while he was approaching the crossing, and this is especially tru^ when it would be impossible for him to see or hear the train, if the bell was not rung or the whistle blown, by reason of an embank- ment or other obstruction tO' sight or sound. Bower v. Chi- cago, M. & St. P. R. Co., 61 Wis., 457. §426. Defects in laying out highway. Defects in laying out a highway across a railway right of 105 §427-429 NEGLIGENCE OF RAILWAYS. way are not cured by the provisions of Section 1395 R. S., if within the term of 3 years the defendant fenced across the supposed highway and put in gates. Hunter v. C. St. P. M. & O. R. Co., 99 Wis., 613. d. Injuries to employees. §427. Injury to car repairer — ^negligence of switchman. Where a railroad company made all needful regulations for the safety of the plaintiff, while he was at work repairing a car, put out a flag in a conspicuous place thereon, in accordance with such rules, to indicate to its other servants the presence of plaintiff in such car; and there being no question, but what this method was reasonably sufficient, and that the sole trouble was that a switchman did not mind the signal, and negligently caused a car to be propelled against the one in which the plain- tiff was working, causing the injury, defendant is not liable. Smith V. Chicago, M. & St. P. R. Co., 91 Wis., 503. §428. Same — admission in ans;wer — nonsuit. Plaintiff was employed as a car repairer on two tracks, called repair tracks, which were kept locked. On the day of the accident he was ordered by defendant's foreman to repair a car on a side track, upon which he did not know trains were to be made up, and he apprehended no' danger. While en- gaged under the car making repairs, an advancing train struck the oar Under which plaintiff was working, pushed him over and injured him. The answer admitted that "ordinary care and prudence, and the customs and regulations of the company, required" that such work should not be done on such a track, except under protection of a watchman or other suitable pro- tection. There being no proof of any such protection, it was held, that the fact that the accident happened was sjufficient to take the case to the jury, and a nonsuit was improperly ordered. Luebke v. Chicago, M. & St. P. R. Co., 59 Wis., 127. §429. Death caused by not keeping guard rail properly- blocked. In an action against a railroad company, for causing the death of a switchman, the evidence showing the defendant was guilty of negligence in not keeping a guard rail properly blocked in which deceased got caught, and there being insufficient evi- dence to show he either assumed the risk or was guilty of 106 INJURIES TO EMPLOYEES. §430-433 contributory negligence, as a matter of law, the court properly refused to take the case from the jury. Curtis v. Chicago & N. W. R. Co., 95 Wis., 460. §430. Failure to provide against improbable accidents — throwing mail bag. A mail bag was usually discharged near the mail catcher, which was 200 feet west of the depot, and there is no testimony whatever that it had ever been thrown off at the depot before the time of the injury question. Held, that the company is not chargeable with notice that it was likely to be thrown off at the depot, and thence was not required to g^ard by lotice ur otherwise against an accident to the plaintiff resulting from its being thrown off there on the occasion in question. Mus- ter V. Chicago, M. & St. P. R. Co., 61 Wis., 335. §431. Killing of switchman in yard — defective blocking. If the original construction of all the guard rails in a rail- road yard was uniformly defective, a switchman who had worked in such yard for 9 or 10 months, should have seen and known the danger, and appreciated the risks, if there were any. But if only a particulaf block was defective in construction, such employee could not, as a matter of law, be charged with assumption of the risk. Paine v. Eastern R. Co., 91 Wis., .340. §432. Injury to switchman — uncoupling cars in motion. It is not negligence per se, for a switchman to go in betweeh cars while in slow motion, to uncouple them, or to use a stone ar he walked- along, to loosen the coupling pin, such being the custom or usage in that yard, with the approbation of the yard master. And this is true, although deceased could have sig- naled the engineer to stop and could have taken out the pin without danger. Curtis v. Chicago & N. W. R. Co., 95 Wis., 460. §433. Same — duty of vigilant inspection. A railroad company owes to its employees the duty of care- ful and vigilant inspection to remedy a defect, and where, in an action for personal injuries, by a switchman caught in an imperfectly blocked frog, there was evidence tending to show that the blocking in question had become defective by wear, the reasonable inference is that the defect had existed for some 107 . §434"437 NEGLIGENCE OF RAILWAYS. time, and it was for the jury to say wether the defendant was negligent in not inspecting its track and discovering and lemedying the defect. Paine v. Eastern R. Co., 91 Wis., 340. §434. Same — ^proximity of unused switch to track. A stub switch stand, which was spiked iti position and had never been used, had an iron arm projecting toward the track, at the height of about two feet from the ground, with the up- per end only 7^ inches from the gangway step of a passing switch engine. No light was provided for this switch, which was much nearer the track than the other switch stands in same yard. Held, question for jury as to the defendant being negligent in locating the switch in such position. Coif v. Chi- cago, St. P. M. & O. R. Co., 87 Wis., 373. §435. Same — open ditch — uncoupling cars. Where the death of a switchman was caused by his falling into an open ditch, located under a railroad track, between two ties and extending outside the track, while walking be- tween and attempting to uncouple cars, and there was evidence showing that the ditch in question was. substantially different from the openings at the other switches, and the danger to be apprehended was greater in degree as well las diflferent in char- acter, because said ditch was substantially different from the openings at the other switches, it cannot be held as a matter of law, that the deceased assumed the risk. Hennesey v. Chi- cago & N. W. R. Co., 99 Wis., 109. §436. Same — unseen accident — question for jury. In an action against a railroad company for damages caused by the death of^ a switchman, where no one saw the injury, and the circumstances in evidence were such as might well lead to different inferences in the minds of reasonable men, the ques- tion as to whether or not the death in question was the result of an unaccountable accident, should, on request, have been submitted to the jury. Hennesey v. Chicago & N. W. R. Co., 99 Wis., 109. §437. Same — temporary employment. Plaintiff applied to defendant's station agent, whom he had occasionally helped, for employment, and was by him referred to the train dispatcher, who promised future employment, and directed him in the meantime to return to his former employ- 108 INJURIES TO EMPLOYEES. §438-441 ment, and to help the station' agent. The latter gave him a switch key, and under hia directions, plaintiff opened and closed switches, and loaded and unloaded freight, baggage and express. On the day of the accident, he rode down towards the switch to close it, and while riding on the car, he was struck from the car by being carried against the corner of a freight car which stood on a side track very near the cross over track, on which the passenger train was moving. The evidence was deemed sufficient to support a finding that plaintiff was an employee of defendant at the time of the injury. Button v. Chicago, M. & St. P. R. Co., 87 Wis., 63. §438. Injury to brakeman — negligence of engineer. Evidence tending to prove that the engineer ran his engine on a spur track at the rate of 6 miles an hour, near the flat car to be coupled with it, and that he was running at the rate of three miles an hour when it struck the car; and that he paid no attention whatever to the coupling of his engine with the fiat car, is sufficient to sustain a finding by the jury that he was negligent. Baltzer v. Chicago, M. & N. R. Co., 89 Wis., 357. §439. Same — coupling cars. Plaintiff, a brakeman, was injured while attempting to coe-i;-^ cars moving at a high rate of speed to a portion of a train standing still upon the track. The cars had already been detached from the engine when he gave the signal to slow down. Held, the evidence did not sustain a finding that the injury was caused by the negligence of the engineer in not obeying the signals. Lagage v. Chicago & N. W. R. Co., 91 Wis., 507. §440. Same — same — obstruction between rails. A railroad company that negligently permits piles pf ashes to accumulate between the rails, is liable to an employee for the injuries caused by his stumbling over them, in the absence of contributory negligence on his part, and he had not assumed the risk of an injury from such cause. Kennedy v. Lake Su- perior T. & T. Co., 93 Wis., 33. §441. Same — same — proximate cause. In an action against a railroad company for injuries sus- tained by a brakeman while coupling cars, and which thp com- plaint alleged was caused by a sudden sinking of the roadbed, 109 §442-444 NEGLIGENCE OF RAILWAYS. the jury returned a special verdict that the track was not in a reasonably safe condition; that at the time of the accident a sinking of the roadbed occurred suddenly at the place where the accident occurred; that the defendant was guilty of negli- gence occasioning the injury to plaintiff, through, its neglect to keep the track in repair; and that the defendant could, by the exercise of ordinary care and prudence, have discovered and repaired the cause of accident before it occurred. Held, not sufficient to support a judgment for plaintiff, and that it was error to refuse to submit the question as to whether de- fendant bad any reason to apprehend such a sinking of the roadbed and track thereon, so that the question of proximate cause might be fairly considered and decided by special answer. . McGowan v. Chicago & N. W. R. Co., 91 Wis., 147. §442. Same — same — ^riding on pilot — question for jury. ihe plaintiff, a brakeman, wa^ injured while riding on the pilot of an engine and labout 'to couple the engine to cars on a spur track. Upon the evidence it is held that the question whether the accident was caused by the running of the engine at a dangerous rate of speed up to within a few feet of the cars and its sudden reversal at that point, whereby plaintiff was thrown forward and caught between the bumpers, or whether plaintiff accidentally, and without fault of the engineer, lost his balance, while reaching forward to make the coupling, was properly a question for the jury. Baltzer v. Chicago, M. & N. R. Co., 83 Wis., 459. §443. Same — clearance post — assumption of risk. Plaintiff knew that clearance posts were used along ae- fendant's road, and the purpose of their use, and should have anticipated the existence of a post at the place of the accident. . Whatever of danger was incident to the existence of the post at that place was one of the ordinary hazards of the employ- ment, which plaintiff assumed. Scidmore v. Milwaukee L. S. & W. R. Co., 89 Wis., 188. §444. Injury to fireman — ^negligence of engineer — con- tributory negligence. Plaintiff was injured while under an engine by the engineer blowing off steam. It was shown there was a custom of long standing, and known to plaintiff, that if either the engineer or 110 ANIMALS, LIABILITY FOR INJURY TO. §445-448 lireman went under the engine in the performance of his duty, he was to notify the other. Plaintiflf had notified the engineer that he was going under the engine, but afterwards came out and was seen by the engineer, and then went about some other duties, after which he again went under the engine, without notifying the engineer or being seen by him, when he was in- jured. Held, there was no ground for imputing negligence to the engineer, and that plaintiff assumed the risk because he failed to give the necessary notice, although the engine had been partly .blown off at the last station, and did not anticipate ;t would be blown off again so soon. Crane v. Chicago, M. & St. P. R. Co., 96 Wis., 487. e. Animals, and liability for injury to. §445. liability for injury to animals trespassing on tracks. Where a railroad company erects and maintains proper fences and cattle guards along its road, keeping them in good . oiidition, cattle escaping and straying upon the road are tres- passers, and the law charges the owner with negngence, al- though not guilty of any actual carelessness in suffering them to escape. Fisher v. Farmers' Loan & Trust Company, 31 "Wis., 73. §446. Injury to animals — discretion of engineer. The engineer is authorized to exercise some discretion in the choice of the different courses of action open before him. Schultz V. Chicago & N. W. R. Co., 44 Wis., 638; Gumz -i'. Chicago, St. P. M. & O. R. Co., 52 Wis., 673; Lynch v. N. P. R. Co., 84 Wis., 348. §447. Same — action to recover — trespasser. In an action for injury to a domestic animal, the mere fact that the animal was a trespasser on defendant's road, or that it passed thereon from land not belonging to the plaintiff, will not defeat a recovery. Curry v. Chicago & N. W. R. Co., 43 Wis., 665. §448. Same — cattle guards — existence of higliway must be proved. In order to recover from a railway company the value of a horse alleged to have been killed by the negligence of. the 111 §449"452 NEGLIGENCE OF RAILWAYS. defendant in failing to place cattle guards as required by law, the plaintifiE must prove the existence of a highway across the company's right of way at or near the point in question. Jnunter v. Chicago, St. P. M. & O. R. Co., 99 Wis., 613. §449. Same — gross negligence. Plaintifif's horses ran along a highway nearly parallel to defendant's track, upon winch was a passenger train going in the same direction, until they reached a crossing, where one horse was struck by the engine and injured. The evidence — showing among other things, that the horses might have turned from the highway into an open field before reaching the cross- 11. g; that the engineer blew the stock alarm whistle to scare thtiu from the track; and that he applied the air brake so that itic train stopped with the engine on the crossing where it struck the horse— is held, not to sustain a finding by the jury that the engineer was guilty of gross negligence. Lynch v. N. P. "r. Co., 84 Wis., 348. §450. Same — same. A railroad company is liable for the gross negligence, or willful wrong-doing of its servants, whereby animals upon its track are injured. Althougih railroads are entitled to the exclusive use of their tracks, they are yet liable for injury to animals trespassing thereon caused by the wanton negligence or malfeasance of their servants. Pritchard v. La Crosse & Mil. R. Co., 7 Wis., 232. §451. Same — notice — condition precedent. The notice required by Chapter 202, laws of 1893, is a con- dition precedent to the maintenance of an action for the kill- ing of stock by a railroad train. The fact that some of de- fendant's ofiBcers or employees may have known where the damage occurred is not material, nor will such knowledge dis- pense with the necessity of giving the prescribed notice. Ryan V. Chicago & N. W. R. Co., 101 Wis., 506. §452. Same — ^same — same. The notice must point as directly and plainly to the place of the injury as is reasonably practicable, having regard to its character and surroundings, and a notice which applies equally 112 ANIMALS, LIABILITY FOR INJURY TO. §453-456 to any place within a distance of three miles cannot be said to be reasonably certain. Id. §453. Same — same — vested rights. The amendment of Chapter 303, Laws of 1893, as it appears in the last paragraph of Section 1816b of the Statutes of 1898, does not apply to a case, the rights of which became fixed before the enactment of the last statute. Id. §454. Same — notice of claim — condition precedent. The notice required to be served upon railroad companies under Section 1816b R. S., is for the manifest purpose of ena- bling the defendant to investigate and settle the claim or pre- pare for defense, and to carry into effect such purpose, the notice must be regarded as a condition precedent to the main- tenance of an action. A written notice served several months after the case had been tried and prosecuted to judgment in Justice Court, although within one year from the time the cause for action accrued, does not fix the requirements of the statutes. Weed v. Gumaer Mnfg. Co. v. Whitcomb, 101 Wis., 336. §455. Same — same, of both parties. If the owner rashly or carelessly permits his animals to go upon the road, and they are killed by the gross negligence of the railroad company or its servants, it is gross negligence against gross negligence,- and there can be no apportionment of damages. Chicago & N. W. R. Co. v. Goss, 17 Wis., 438. §456. Same — on track — trespassers. In an action against a railroad company, for the negligent killing of cattle on its track, it did not appear that the "plaintiff habitually permitted his cattle to run thereon, or that he was so situated as to prevent the danger they were in, from passing locomotives. The cattle in such case are considered tres- passers, their presence on the track accidental, and it will be assumed they escaped from their enclosure through the in- sufficiency of fences, 'and that their owner would be liable for the damages they might commit; but if the employees of the defendant, being in a position to avert the danger, yet wantonly or willfully injured or destroyed the animals, the company will be held responsible for their loss, unless it also appears the 8 113 §457"46o NEGLIGENCE OF RAILWAYS. plaintiff was negligent. Stucke v. Milwaukee & Miss. R. Co., 9 Wis., 202. 8457. Same — same — instructions refused. There was no error in submitting the question of plaintiff's contributory negligence to the jury upon all the evidence, and refusing to instruct them that facts contained in certain hypo- thetical statements prepared by defendants counsel and sup- posed to conform to the proofs, would show such contributory negligence. ' Veerhusen v. Chicago & N. W. R. Co., 53 Wis., the engine. Held, error to take from the jury the question as to the loco- motive being in good condition, and the defendant's negligence in respect thereto. Stacy v. Milwaukee, L. S. & W. R. Co., 85 Wis., 225. §480. Same — ^ice-houses — same. Plaintiff's ice-houses were destroyed by fire, which started a few minutes after defendant's engine had passed along a side track near them. The evidence of defendant was to the effect that the engine had the most approved appliances for pre- venting the escape of fire, and that these appliances were all in good condition, the dampers properly closed, and the ash- pans properly cleaned at the time, and that under such cir- cumstances coals or cinders could not escape from the ash- pan. There was no positive evidence of the size of the coal that started the fire between the rails, but as a strong wind was blowing at the time, it might be inferred that the fire was not started by a cinder from the smokesitack, but by a cinder escaping from the ashpan, and that the latter was therefore defective in either construction or rnanagement. It was held error for trial court to rule there was no evidence tending to show negligence in that respect, and to take the question from the jury. Kurtz & H. Ice Co. v. Milwaukee & N. R. Co., 84 Wis., 171. 121 §481-486 NEGLIGENCE OF RAILWAYS. §481. Same — failure to stop train. Where the engine of defendant's gravel train, on which were a large number of its workmen, set fire to combustibles on the track, which was known to defendant's servants in charge of the train, and the fire spread to plaintifif's property, a failure to stop the train and leave men to extinguish the flames was negligence, which renders the company liable; but in case of a passenger train it is probable that such failure to stop might not be negligence. Roike v. Chicago & N. W. R. Co., 26 Wis., 537. §482. Combustible material on track — question for jury. It is a question of fact for the jury whether, in any par- ticular place, it was negligence to leave combustible material on or near the track, on the grounds of the company, liable to ignite by the sparks emitted by its engines. Gibbons v. Wis. V. R. Co., 58 Wis., 335. §483. Same, on right of way— dry grass. The presence of dry grass and other inflammable material upon the way of a railroad, suffered tO' remain there by the company without cause, is a fact from which the jury may find negligence against the company. Kellogg v. Chicago & N. W. R. Co., 36 Wis., 223. §484. Same — same. Where sparks from defendant's engine set fire to dry grass, weeds and bushes, suffered to remain and accumulate on land used for defendant's railway, and the fire, spreading upon plain- tiff's lands, destroyed his property, the question whether defendant's road, and that the flame reached it only by passing was properlv one for the jury. Id: §485. Same — ^intervening fields — remote damages. The fact that the property destroyed ' was distant from defendant's road, and that tlie flame reached it only by passing through intervening fields, does not render the damages remote, or prevent a recovery. Id. §486. Same — dry weather. The fact that the fire would not have spread to the property destroyed unless the weather had ibeen dry and the wind strong, does not affect defendant's liability. Id. 122 FIRES. §487-491 §487. Same — on land adjoining track. The presence of combustible material on plaintiff's land adjoining the track did not constitute negligence. Erd v. Chi- cago & N. W. R. Co., 41 Wis., 65. §488. Duty of company in constructing road. In building its road, a railroad company is bound to con- sider the nature of the surface of the country, the combustible character of the moss and grass, the dryness of the season, the strength of the wind and its liability to drive a fire, once started, over the adjoining county, and to take effectual means to guard against the origin of fire on its right of way. Marvin V. Chicago, M. & St. P. R. Co., 79 Wis., 140. ' §489. Fire set by negligence — other fire — ^loss of stodk — failure to fence track — ^proximate cause. A fire, being a combination of one having no responsible origin, with one caused by defendant's negligence, swept both sides of defendant's right of way clear. There had been no^ fence, as required by Sec. 1810 R. S. After the fire, plaintiff's horses strayed on the track, and were killed by defendant's train, but without negligence on the part of those in charge. Under these circumstances, the defendant was not liable, as the fence, had it existed, would have been destroyed by the fire, and the statute being penal, will not be so construed as to enforce liability for a loss' hot caused by compliance therewith. Cook V. Minneapolis, St. P. & S. S. M. R. Co., 98 Wis., 634. §490. Same — notice. Under Ch. 203, Laws of 1893, requiring notice to be given to a railroad company of a claim against it by reason of fires caused through its negligence, the provision that "such may be given in the manner required for service of a summons" is permissive, but is not to "be construed as providing that it shall be so given, and notice to the general claim agent is notice to the cpmpany.' Atkinson v. Chicago' & N. W. R. Co., 93 Wis., 363. ' §491. Same — same. Such notice, if received at the general claim office, by the general claim agent, within a year after the fires ceased burning, is sufficient. Id. 128 §492-495 NEGLIGENCE OF RAILWAYS. §492. Rights of persons occupying farms along railroads. Persons occupying farms along railroads are entitled to cultivate and use them in a manner customary to farmers, and may recover for damages by fire resulting from the negligence of the railroad companies, although they have not plowed up the stubble, or taken other like unusual means to guard against such neghgence. Kellogg v. Chicago & N. W. R. Co., 36 Wis., 233. §493. Fires set by defendant's employes — contributory negligence. , In an action for damages to plaintifif's land caused by fires burning on defendant's right of way, the evidence showed the fire was set by defendant's men on July 28; that it spread north- ward and on Aug. 4, a little of plaintiff's land was burned over, and on Aug. 8, there was a large fire on plaintifif's land; that he protested to defendant's men at the beginning against their burning on the right of way on account of the danger to his grain, timber and other property; that at no time was the fire entirely out pn the right of way, but continued in old logs and stumps; that plaintiff judged the burning of his property con- tinued 3 or 4 days, during which time he was harvesting his oats. Held, the question of defendant's negligence and plain- tiff's contributory negligence were properly left to the jury, and that there was no abuse of discretion in refusing to set . aside a verdict in favor of plaintiff. Clune v. Milwauke & N. R. Co., 75 Wis., 532. §494. Duty of defendant, though mere licensee. A railroad company which has constructed a track and is using it for its own gain and profit, is bound to use reasonable care to keep the same clear from inflammable material, although it had merely a license to lay suchv track and has no interest in the land over which it is laid. Kurtz & H. Ice Co. v. Mil- waukee & N. R. Co., 84 Wis., 171. §495. Cranberry marsh — old fire — nonsuit. - . In an action for damages caused by burning of plaintiff's cranberry marsh, it was alleged that the fire caught from one started by defendant 12 days previous and several miles dis- tant. For two days before the fire complained of, the country to the ,north was on fire for several miles, and whether the fire caught from the defendant's fire is mere conjecture. Held, 124 RULES AND REGULATIONS. §496-497 nonsuit proper. Megow v. Chicago, M. & St. P. R. Co., 86 Wis., 466. g. Rules and regulations. §496. Rules of company construed — question for jury. A rule required that conductors and brakemen of freight trains approaching stations must be out on their trains at least one mile from every station. While approaching a station, one of the brakemen was standing in the gangway between the tank and the engine and was killed by a collision. It was held, that the negligence, if any, of deceased, in remaining at that place, was remote, and did not contribute to the acci- dent; and that although had he been at his proper post on top of the cars he might not have been injured, yet his position at the time of the accident was not the proximate cause of the injury. Phillips v. Chicago, M. & St. P. R. Co., 64 Wis., 475. §497. Same — same — instructions, The trains of one road ran between two stations over the track of another road. A train of the ■ W. C. road left one station with orders to run wild to the other station, keeping clear of regular trains. At a mere signal station between such two stations, and in a dense fog, the train of the W. C. road ran into the train of the other road which had preceded it> some time, but had become stalled, and was backing down. By such collision, the brakeman on the W. C. train was killed. In an action against the lessor road for such negligent killing, it, was held, that an instruction that the employees of the W. C. train were bound to observe the rules of defendant road so far as they did not conflict with the special orders received, was correct, and not misleading to the prejudice of defendant; that a train of defendant road which preceded the W. C. train, and which would have arrived at one of said terminal stations, if on time, before the W. C. train had left the telegraph station next preceding that, was a "regular" train, for which an outlook was to be kept; that a rule that trains are always to "approach a station on the supposition that a train is to be met there and is standing on the main track," contemplates only the meeting of trains; and that the questions of negligence of those in the manageinent of the W. C. train, and those of defendant's train in not giving signals to train which might be following, were properly for the jury. Phillips v. Chicago, Ml. & St. P. R. Co., 64 Wis., 475. 125 §498-502 NEGLIGENCE OF RAILWAYS. §498. Beasonable rule of defendant. A rule of the defendant company to send all its cars used in carrying ore, after they are unladen at the point of trans- shipment, to the repair shops for inspection and for such repairs as any of them may be found to require, is reasonable; and per- sons employed to move trains of such unloaded cars to the shops must be held to have assumed the extra hazard of such employment; and the company is not chargeable with negli- gence because one or more of the cars in such a train is out of repair. Flannagat^ v. Chicago, M. & St. P. R. Co., 50 Wis.. 462. h. Speed of trains. ^ §499. TJnlawful speed — negligence. Running a railroad train within ,the limits of a city at an unlawful rate of speed is negligence. Piper v. Chicago, M. & St. P. R. Co., 77 Wis., 347. §500. Same — same. Although one knows that a train of cars is moving at a greater rate of speed than is lawful, lie is not authorized to go upon the track or attempt to cross merely because he might do so with entire safety if the cars were moving at only a lawful speed; still he has the right to assume that the train is moving at a lawful rate of speed until the contrary is made apparent, and the fact that the speed was unlawful must there- fore be considered in determining the question of negligence. Langhofif v. Milwaukee & P. du C. R. Co., 19 Wis., 489; S. C. 23 Wis., 44; Butler v. Milwaukee & St. P. R. Co., 38 Wis., 487. §501. Same — question for jury. Whether or not the killing of plaintiff's intestate was charge- able to defendant's negligence in running its train at an unlawful rate of speed through a certain city, is held, upon the evidence in the case to have been properly submitted to the jury, whose finding in that behalf will not be disturbed. Hoppe v. Chicago, M. & St. P. R. Co., 61 Wis., 357. §502. Same — statutory rate may be. The rate of speed of trains in cities and villages, being lim- ited to 15 miles an hour, by Ch. 467, Laws of 1891, a less rate of speed may become unlawful by reason of some peculiar danger of the situation. Wickham v. Chicago & N. W. R. Co., 95 Wis., 23. 126 SPEED OF TRAINS. §503-509 §503. High rate, when not unlawful. Running a railway train at a speed of thirty or thirty- five miles per hour through and past the station in question, was not an unlawful rate of speed, and negligence cannot be imputed to the railway company on that fact alone, for an injury to an employee caused by a mail bag being thrown from the car while passing such station. Muster v. Chicago, M. & St. P. R. Co., 61 Wis., 325. §504. Postal regulations. The regulations of the Post Office department do not require the speed of trains to be slackened at catch stations. Id. §505. Violation of statute — criminal acts. Under Sees. 37 and 43 of the general railroad law of 1873 (continuing Sees. 23, 41, Ch. 79, R. S; 1858), the restraints placed upon railroad companies as to their rates of speed at highway crossings and within incorporated cities, are limita- tions of the franchise, and violations of them are expressly made criminal by the statute. Horn v. Chicago & N. W.~R. Co., 38 Wis., 463. §506. Limitation on franchise — unlimited speed. Defendant's charter authorizes unlimited speed, while the railroad law of 1873 limits the rate within incorporated cities to six miles an 'hour. Held, the franchise and regulation together are positive authority for last named rate in cities. Id. §507. City charter — ^limitation as to speed. The charter of a city authorized the enactment of ordinances "not repugnknt to the constitution and laws of this state," and "to regulate and restrain the speed of cars in passing through said city." An ordinance of" said city limits the rate of speed to five miles per hour. Held, the ordinance, being repugnant to the general statute, is void. Id. §508. Rate of speed over country crossings. Running a train at the rate of 40 miles an hour over a country crossing where there is no limitation as to speed either by statute or ordinance, is not negligence, nor can negligence be inferred from such fact alone. Sutton v. Chicago, St. P. M. & O. R. Co., 98 Wis., 157. §509. Rate of speed in cities. The statute requires that all railroad companies shall "cause 127 §510-514 NEGLIGENCE OF RAILWAYS. the bell on the engine to be rung before crossing any of the streets" of an incorporated city, and that their trains shall not go faster than six miles an hour until "they shall have passed all traveled streets of said city." Held, that these provisions apply to all actually traveled streets within the city limits, though such only by user, and not merely to streets dedicated by recorded plats, or laid and adopted by the municipal authori- ties. Ewen V. Chicago & N. W. R. Co., 38 Wis., 613. §510. Same. The statute regulating the speed of railway trains in cities was passed in favorem vitm, and its strict observance will be enforced by the courts. Haas v. Chicago & N. W. R. Co., 41 Wis., 44. §511. Same. Sec. 1809, R. S., providing that "in all cities and villages, * * * no train or locomotive shall go faster, until after having passed all the traveled streets thereof, than at the rate of six miles per hour, makes it unlawful to go faster than that rate, although it has 'not come to any of the traveled streets. Hooker v. Chicago, M. & St. P. R. Co., 76 Wis., 542. §512. Rate of speed on curves. A jury would not be justified in predicating negligence on the part of a railroad company or its employees upon the simple fact that a freight train was run at a speed of eight or even ten miles an hour on a curve such as there was in the track where the accident happened, when it is the daily and hourly expe- rience that such trains run over such curves at a much higher rate of speed with safety, and where the evidence shows that the track was in good repair. Lockwood v. Chicago & N. W. R. Co., 55 Wis., 50. §518. Crossing above highway — statutory regulations. The statutory regulations as to rate of speed of railway, and to the ringing of bells or blowing of whistles, apply only to grade crossings, and not to elevated crossings. Jensoa v. C. St. P. M. & O. R. 86 Wis., 589. i. Signals. §514. Blowing whistle. The blowing of a whistle as required by Sec. 1809 R. S. 128 SIGNALS. §515-519 is not negligence. Cahoon v. Chicago & N. W. R. Co., 85 Wis., 5ro. §515. Liability for injury to horses frightened by blow- ing off steam. A railroad company will not be liable for injury to horses caused by their becoming frightened at blowing off steam by the locomotive, that being a noise incident to the move- ment of trains, and there being no evidence that it was done wantonly or recklessly. Id. §516. Whistling — highway crossing. Under Sec. 1809, requiring a locomotive to blow its whistle 80 rods from a highway crossing, it may recross a highway without first going a distance of 80 rods beyond it. Id. §517. Pushing cars ahead of locomotive — duty to give warning. It is not unlawful for railway companies to propel cars by pushing them in advance of the locomotive by which they are propelled when the exigencies of their business require it to be done. But if they do so under circumstances which increase the risks of injury to persons or property, the law places them under obligation to give timely and suitable notice or warning in some manner of what they are doing. Bohan v. Milwaukee, L. S. & W. R. Co., 58 Wis., 30. §518. Absence of headlight — pushing cars in front of loco- motive — question for jury. In an action against a railway company for personal injuries, there was evidence tending to show that the plaintiff, who was about to cross the track, was unable to see three gravel cars which were being pushed in front of a locomotive, and by one of which he was struck, on acount of the insufficiency of the headlight on the locomotive. It was held that the questions of negligence and contributory negligence were properly for the jury, and a nonsuit was improperly granted. Id.- §519. Same — same — same. Plaintiff was injured while attempting to cross a railroad track in the night time ahead of several cars that were being pushed by a locomotive. It satisfactorily appeared from all the evidence that at the time plaintiff was injured and immediately before that the train was running at a reasonable and lawful 9 129 §520-523 NEGLIGENCE OF RAILWAYS. rate of speed, that it was equipped with a proper head light; that the bell was rung and a brakeman stood on the gravel car, farthest from the engine with a lighted lantern. Held, the •defendant was not guilty of any negligence which caused the injury. Id. §520, Warning when locomotive crosses highway. The statute requiring the bell to be rung and whistle blown before a locomotive crosses a highway, except in villages and cities, was intended to guard against, not only the danger of actual collision at the highway, but also the danger of frighten- ing teams traveling upon the public highway near the crossing, and a failure to give such warning is negligence for which defendant is liable for damages caused by such failure to give warning, to those traveling on a highway parallel with the track. Ransom v. Chicago, St. P. M. & O. R. Co., 62 Wis., 178. §521. Evidence — question for jury. In an action against a railroad company for damages to horses at a railroad crossing there was positive evidence both on the part of the train employees as well as by other disin- terested witnesses that the proper signals were given. No witness testified that the bell was not rung, and two witnesses testified simply that they did not hear the whistle blown eight rods before reaching the crossing, but did hear it blown at a point about forty-five rods west of the crossing. Neither of these witnesses were listening for the signal or had his atten- tion directed to the subject; and under the rule stated fn Wick- liam V. Railroad Company, 95 Wis., 23, this evidence will not support a verdict that the signal was not given. Sutton v. Chicago, St. P. M. & O. R. Co:, 98 Wis., 157. §522. Warning in city limits — negligence. The statute makes it the duty of those having charge of a train within the corporate limits of a city, to ring the bell, or give some warning of the approach of the train to persons traveling on the highway and advancing upon a crossing, and a failure to perform this duty is negligence, which would render the defendant liable for an injury sustained in consequence of this neglect of duty. Duffy v. Chicago & N. W. R. Co., 33 Wis., 369. §523. If bell or whistle insufficient, other warning must le given. If the bell and whistle on defendant's train approaching a 130 QUESTIONS OF NEGLIGENCE FOR JURY. §524-526 railroad crossing cannot give a warning to persons approaching it with teams along the highway because of a high bank inter- vening, the defendant is bound to employ some other means of giving such warning. Roberts v. Chicago & N. W. R. Co., 35 Wis., 679. §524. Withdrawal of flagman. The withdrawal of a flagman from a crossing where he is usually kept to signal approaching travelers, is negligence. Burns v. N. C. R. M. Co., 65 Wis., 312. k. Questions of negligence for jury. §525. Gross negligence. The question as to whether deceased was killed at a cross- ing by reason of the gross negligence, recklessness and criminal misconduct of defendant's employees in charge of the train is for the jury, unless the evidence be perfectly conclusive and overwhelming. Duame v. Chicago & N. W. R. Co., 73 Wis., 523. §526. Evidence sufficient to take question of cause of death to jury. In an action against a railway company for injuries to a child causing its death, the plaintiff's evidence tended to show that the child was 22 months old, and previously in good health; that defendant's engine struck the child, and threw it into the air and about 15 feet away from the track; that it was taken up senseless and with one leg broken; that the broken limb was adjusted and bandaged by physicians, whO' continued to treat the child, and whose directions and prescriptions were strictly followed ; that a cough set in directly after the injury, and the child manifested great pain and nervous irritability with sleeplessness, lack of appetite, etc.; that in a few days it had an unnatural appearance of the eyes; that these symptoms continued and increased until its death; that about eight days before its death, it grew much worse, and was alternately hot and cold, and its face frequently flushed and red; that a few days before death, the physicians removed the splints and band- ages from the broken limb; and that the death occurred about a month after the injury. Held, that upon this evidefice the jury would have been justified -in finding that the death was caused by the injuries inflicted by defendant. Jucker v. Chicago & N. W. R. Co., 52 Wis., 150. 131 §527 528 NEGLIGENCE OF RAILWAYS. §527. Evidence of negligence for jury — case stated. In an action against a railroad company for injuries to plaintiff's person, the evidence for plaintiff was, that he was employed to work in defendant's car-shops in a certain city; that it was his duty, when rei^uired by the yardmaster, to assist in moving cars upon the side tracks near the shops; that there was, and had been for more than a year before the injury, a small pile of lumber, eighteen inches or two feet high, so near one of the sidetracks that a person engaged in pushing a car along the track could not pass between the car and the pile, but must either pass over the top of the pile or leave his position at the side of the car and fall behind it; that plain- tiff had worked for defendant about a month, and had assisted in moving cars, but whether on this particular track does not appear; that at the time of the accident, the boards (or some of them), which covered the pile to protect it from rain, had slipped partly off; that a slight snow had recently fallen; that plaintiff, by direction of the yardmaster, was assisting in mov- ing a car on said track, and was pushing hard, with his head down, and shoulder against a stake at the side of the car; that the persons engaged could hardly move the car, and were hallooing to push harder, keep it going, etc., that he did not see the pile of lumber until he came upon it; that, in attempting to pass over the pile, he stepped upon a misplaced board, which gave way, and he was thrown down and his foot carried under the car and crushed; that in moving cars along that track, the men sometimes walked over the top of the pile, and at other times, on reaching it, fell back behind the car; and that, besides the yardmaster and foreman of the shops, there was employed there a person styled a superintendent, who was frequently m and about the shops and the yard. Held, that upon this evi- dence the questions of defendant's negligence aad plaintiff's contributory negligence were for the jury. Bessex v. Chicago & N. W. R. Co., 45 Wis., 477. §528. Injury from defective highway crossing. The situation arising from a sharp curve and slant to the track ,as it crossed the highway makes the question as to whether the elevation of the rail an inch above the crossing was negligence, one for the jury. McDermott v. Chicago, M. & St. P. R. Co., 91 Wis., 38. 132 QUESTIONS OF NEGLIGENCE FOR JURY. "§529-53! §529. Contributory negligence — proximate cause. Plaintiff's intestate was killed at the crossing of a spur track and a private way. He had been standing with his team 36 feet away, when he commenced to drive slowly towards the track, the view of which was obstructed by buildings, until his team was about four feet from the track, when he could for the first time see the end of a car about 30 feet away, being pushed by an engine. The car caught the collar of one of the horses, turning the 'team sharply to one side, by means of which deceased was thrown under the car and killed. The eyidence showed no warning sign was erected, nor was the bell rung or whistle sounded, and the cars were running at eight miles an hour. Cars were frequently pushed over the crossing, but it was uncertain whether deceased knew of the fact. Under these circumstances, it was not error to admit evidence that there was no warning sign; or to refuse to instruct the jury that defendant was under no obligation to sound a whistle there; or to refuse an instruction that the speed of the train was not the proximate cause of the accident, and the question of con- tributory negligence was properly for the jury. Winstanley v. Chicago, M. & St. P. R. Co., 72 Wis., 375; Seefeld v. C. M. & St. P. R. Co., 70 Wis., 216, distinguished. §530. Collision. In an action against a railway company for injuries received by plaintiff, from collision with a train, while driving his team and wagon across defendant's road, the court cannot say, as matter of law, that ordinary care required plaintiff to stop his team and listen for the train ; or that trotting his team to within a rod of the track was negligence, even though he knew that the train usually passed the crossing at about that time of the day; but these questions are for the jury. Eilert v. Green Bay & M. R. Co., 48 Wis., 606. §531. Negligence of parties. Where there was evidence tending to show that a railway train had come to a full stop, and that the persons waiting to get upon it were told to go on board by the persons in charge of it, and that the plaintiff, in attempting to get on board, was injured in consequence of the sudden starting of the train, it was not error to leave to the jury the question of the negligence of the parties. Detroit & M. R. Co. v. Curtis, 23 Wis., 152. 133 §532-535 NEGLIGENCE OF HAILWAYS. §532. Same. Nor were the facts that the plaintiff was told by the defend- ant's servants to get on the hind car, and that he was injured in trying to get on another passenger car, such conclusive proof of negligence on his part as to take the case from the jury. Id. §533. Defect in road — planks sticking above rails. The complaint averred that planks had been negligently placed at a highway crossing, between the iron rails of defend- ant's road, so that, instead of lying level with the grade, they were loose, warped and sticking up four or five inches above the proper level, so as to injure plaintiff by hitting his heels as he was riding on a flat car. Held, that the court cannot say as a matter of law that this does not show a defect in the road, constituting actionable negligence. Pool v. Chicago, M. & St. P. R. Co., 63 Wis., 657. 1. License. §534. Implied, to cross depot grounds. Where a public street, running north and south, extended southward only to the northern line of the grounds of a railway company, and there was no access to it from the south except across those grounds, and both the employees of the company, and the public generally, had been in the habit of crossing such grounds to and from ■ such street, with the knowledge of the company and without objection made. Held, in an action against the company for injuries received by one while passing over the defendant's tracks, that the facts showed an implied license on the part of the railway company to all persons to pass over that portion of the grounds, and that it was not neces- sary, in order to a recovery, that the plaintiff should show the defendant guilty of gross negligence. Delaney v. M. & St. P. R. Co., 33 Wis., 67. §535. Duty to licensee on track. Where a person who was a mere licensee upon the track of the railway was injured by the sudden backing up of a train, caused by a locomotive being coupled thereto, if his presence was unknown to and unexpected b}- the servants of the com- pany operating the train, and would not reasonably be antici- pated by them; if the usual signals of ringing the bell and whisthng of the locomotive were given, the train being operated 134 LICENSE. §536-539 ,and business conducted in the usual manner, then the require- ments of ordinary care and prudence are fully compHed with, and the railway company is not required to give any other notice, signal or warning of the movement of the train or coup- ling of the cars. Hogan v. C. M. & St. P. R. Co., 59 Wis., 139. §536. Use of track by public. Where the evidence shows a constant daily use for twenty years or more, of a portion of defendant's right of way, without any protest, or objection on the part of the company, a jury are justified in finding that such use was with the acquiescence of the company. Davis v. Chicago & N. W. R. Co., 58 Wis., 646. §537. Who is licensee — duty of defendant to. Where the public have been accustomed to the use of a railway company's right of way, and with its knowledge and acquiesence, a person so using the same is a licensee, and not a mere trespasser, and the company will be liable for an injury to such person caused by the negligent act or omission of its servants, and Sec. 1811 R. S. making it an ofifense to walk upon a railroad track does not alter the rule. Id. §538. Licensed path — depot grounds. Sec. 1811 R. S., which makes it unlawful to walk along the track of a railroad, does not apply to licensed paths in and about depot grounds. Mason v. Chicago, St. P. M. & O. R. Co., 89 Wis., 151. §539. Same — ^injury to child on track — question for jury. Plaintiff, a child less than 4 years old, was run over by a freight car in the defendant's yard. There was evidence tending to show that near the place of the accident there was a well- beaten foot-path across some of defendant's tracks, which had been for years frequently and continuously traveled by grown people and children, and that this track was so well defined and its use so frequent that defendant's servants would natur- ally know of the fact. There was also evidence that no lookout was kept when the cars were moved across the alleged path. Held, question was for the jury whether this was a licensed path, so that defendant's employees must be held to be bound to anticipate that a child was likely to be thereon, and keep such a lookout on lits cars to prevent injury to such child. Id. 135 §540-543 NEGLIGENCE OF RAILWAYS. §540. Injury to licensee — platform near track. Plaintiff was foreman of a gang of laborers in the employ of a firm of contractors, who were engaged in loading and unloading cars on defendant's track. For their convenience in that respect they made use of a movable platform, which was sometimes placed so close to the track that cars of only ordi- nary width could pass it. Defendant knew of the use of such platform and acquiesced in it. While plaintiff was standing on such platform, with his back to some cars being pushed by such platform, one of said cars, of greater width than ordinary, struck said platform, causing the injuries complained of. Held, that plaintiff was a mere licensee, to whom the defendant owed no duty of active care, and a judgment for the plaintiff, being contrary to law, must be reversed. McCabe v. Chicago, St. P. M. & O. R. Co., 88 Wis., 531. §541. Same, on track — duty to keep lookout. Where a railway company, by its license and acquiescence has lost the right to treat persons on its tracks as trespassers, it is well settled that it is the duty of such company to provide for a careful lookout in the direction in which the train is moving, in places where people, especially children, are liable to be on the track, and to signal the approach of its cars to persons in positions of danger. Townley v. Chicago, M. & St. P. R. Co., 53 Wis., 626; Davis v. Chicago & N. W. R. Co., 68 Wis., 646; Whalen v. C. & N. W. R. Co., 75 Wis., 654, 662; Johnson v. Lak^ Superior T. & T. Co., 86 Wis., 64. §542. Assumption of risks by licensee. One who, as a mere licensee uses for the passage of his stock an opening under a railway bridge constructed by the company for its own use and benefit, does so at his own risk, and cannot recover for the death of a horse caused by his sud- denly throwing up his head and striking the end of a bolt left projecting downward from a timber of the bridge. Truax v. Chicago, St. P. M. & O. R. Co., 83 Wis., 547. §543. Walking over high trestle — no license. Plaintiff's intestate was killed by defendant's engine while walking across ai high trestle, over which many regular trains ran each day, and upon which it was almost impossible for one to pass a train. It was not planked over, and was so narrow as to leave no room on it outside of a passing train, and was 136 LESSEES. §544-547 so built as rather to repel than induce or invite foot travel over it. Sec. 1811 R. S. makes it unlawful for persons other than those connected with or employed upon thfe railway to walk along its tracks. Held, plaintiff was not a licensee, to whom the defendant owed any special duty to keep a lookout in order to discover his presence on the track. Anderson v. Chicago, St. P. M. & O. R. Co., 87 Wis., 195. m. Lessees. §544. Duties and liabilities of — cattle guards. Defendant, as lessee in possession of the O. & M. R. Rail- road, holds it subject to all duties imposed on the lessor for the benefit and protection of the public. 13 Wis., 637. The extent of the public duty of railway companies in respect to cattle guards on their roads is determined by the statute (laws of 1872) Ch. 119, Sec. 30; Tay. Stat. 1.044 Par. 34) which does not require them to construct such guards at farm crossings, but only at highway crossings. Cook v. Milwaukee & St. P. R. Co., 36 Wis., 45. §545. Negligence, how limited — track used for special purposes. In a suit against a railway company for injuries to an employee, where no recovery can be had for negligence of a co-employee, if defendant's use of the track alleged to have been insufficient was only occasional and for special purposes, and under special instructions to those in charge of trains as to the manner of running them thereon, it is liable only in case it was negligence to use the track in that manner and for those purposes. Stetler v. Chicago & N. W. R. Co., 46 Wis., 497. §546. liability of company using tracks of another. When a railway company uses for the running of its trains a track belonging to another person, it is liable for injuries to its employees resulting from the unfitness of the track for such use. Id. §547. Private track — ^injury to employee. Where the owners of a private railway track occasionally employed by a railroad company for a special use have negli- , gently suffered it to remain in a dangerous condition for such use though trains are run upon it slowly and carefully, the com- 137 §548-549 NEGLIGENCE OF RAILWAYS. pany voluntarily running its trains thereon is liable for an injury to one of its own employees caused proximately by such negligence. S. C, 49 Wis., 609. §548. Duty in running on private track. Neither under Sec. 13, Art 11 of the constitution of Illinois, nor under Sec. 82, Ch. 114 of the Revised Statutes of that state (1874), is it made the duty of a railroad company to run its cars upon spur tracks owned by other persons, for the purpose of receiving or delivering any other merchandise than wheat; and if such duty were imposed, it would still not be the duty of the company to run upon any sufch track that was not rea- sonably safe. Id. §549. Liability of. The lessee in possession of a railway takes it subject to the duty imposed on the Company for the benefit and protection of the public, and incurs the same liability as the company. McCall V. Chamberlain, 13 Wis., 637. 138 CHAPTER IV. NEGLIGENCE OF COMMON CARRIERS. §550. Definition of. A common carrier is one who undertakes, for hire or reward, to transport the goods of such as choose to employ him, from place to place. Doty v. Strong, 1 Pinn., 313. §531. liability of. Where goods, waiting at end of first carrier's line for deliv- ery to next carrier, are lost by the first carrier, it must pay the owner his damages, and seek its remedy against next carrier if, through its negligence, the loss occurred. Conkey v. Mil- waukee & St. P. R. Co., 31 Wis., 619. §552. Same. The foregoing decision followed, as to liability of railway company as carrier, for goods transported by it, destroyed or injured while held in the warehouse for transfer to the next carrier. Wood v. Milwaukee & St. P. R. Co., 32 Wis., 398. §553. Same. A car load of berries was shipped under a contract exempt- ing the carrier from liability for damage thereto arising from "changes in weather, heat, frost, wet or decay." Damage ensued by reason of failure of defendant to properly and promptly ice the car. Notwithstanding the conditions, the shipper may recover by showing that the exercise of reasonable care and skill on the part of the carrier would have avoided the loss. Lamb v. Chicago, M. & St. P. R. Co., 101 Wis., 138. §554. Same. Common carriers are liable upon their general undertaking to the public, for refusal to carry goods, when properly requested, as well as for negligently carrying or failing to carry after the freights have been delivered to them, and the plaintiff is not bound to prove a special contract in order to charge defendant for such refusal. Doty v. Strong, 1 Pinn,, 313. §555. Same — deposit in warehouse. Where goods carried by a railroad company to their place "»-*^ ■•■■ K53r*'^'--'°™™^'™^ri39 '^ <3rm §556-557 NEGLIGENCE OF COMMON CARRIERS. of destination and then deposited) in a warehouse, are kept safely for the consignee until he has had a reasonable .oppor- tunity to remove them, and are afterwards destroyed by fire, the company is not liable for them as a common carrier. Lemke V. Chicago., M. & St. P. R. Co., 39 Wis., 449. §556. Same — duty of, to point short of destination. A common carrier of goods to a point short of their destina- tion, should deliver them to some proper carrier to be taken further, if there is such carrier; but if there are no public means of further transportation, the end of the first carrier's route must be regarded as the place of destination, and it is his duty, on transferring the goods to the warfinger or warehouseman, to notify the consignee of their arrival. Hermann v. Goodrich, 21 Wis., 536. §557 Same — assumption of risk. > The plaintiff shipped two car loads of apples from a place in Michigan to West Superior and brought this action against the carrier for damages to. the fruit while in transit, by reason of lack of ventilation. The contract of carriage provided that the carrier should not be liable for any loss or damage by loss in weight, change in weather, jheat, frost, wet or decay. The first carrier furnished the cars in which the apples were shipped, the cars were kept ventilated by plaintiff's agent by keeping the doors open. The evidence showed that if the doors had been left open it would have afforded ventilation for the apples. Tliat the condition of all the doors to the cars when the apples were turned over for shipment was that the outside doors on one side were closed and on the other side left open. That plaintiff exercised no control over the cars after turning them over to the railway company for shipment. That upon the arrival of the apples at their destination a considerable portion of them were decayed by reason of the excessive heat caused by lack of ventilation during shipment. That the carrier could have caused the cars to be properly ventilated. There was no stipulation that the cars should be ventilated from time to time by opening the .side door at stations during transit, and it was shown that it was impossible to keep the cars ventilated while in transit. Held, plaintiff could not recover, as the negligence, if any, was the negligence of the plaintiff; in other words, he assumed the risk of shipping in the kind of cars that were 140 NEGLIGENCE OF COMMON CARRIERS. §558-561 used. Densmore Commission Co. v. Duluth, S. S. & A. R. Co., 101 Wis., 563. §558. Same — same. A common carrier of goods to a point short of their jlestina- tion, where there are public means of transportation from such intermediate point to the place of destination, is not discharged of his liability by delivering the goods, to a mere wharfinger at the end of his route, unless tfhere is proof of an established usage to that effect; but he must deliver them to some proper carrier, to be taken further. Hermann v. Goodrich, 31 Wis., 536. §559. Same — storage in warehouse. The doctrine of the Supreme Court of Illinois, that when goods transported by railway have arrived at their destination and have been stored in a warehouse by the railway C(jmpany, its liability as carrier is terminated, held, not to apply to a case where the goods were consigned to a point beyond the com- pany's route. Hooper v. Chicago & N. W. R. Co., 27 Wis., 81. §560. Same — ^limiting liability — defendant's negligence. The complaint herein is held to go upon defendant's negli- gence in causing injury to plaintiff's horses carried on defend- ant's railroad, and not upon any absolute liability of the defend- ant carrier as an insurer of the property. Morrison v. Phil- lips & C. Con. Co., 44 Wis., 405. > §561. liability for injury to freight on connecting line. A hack was delivered to defendant at the terminus of their road for shipment by a connecting lake carrier, in which they had no interest nor over whidh they had any control; the ship- ping receipt given provided their liability should cease at the depot where the freight was to be delivered to another carrier; that they should not be liable for loss or damage except by their negligence, and that "for all loss and damage occurring in the transit of said, packages the legal remedy shall be against the particular carrier or forwarder only in whose custody the said packages may actually be at the time of the happening thereof, it being understood that (defendants) * * * assume no other responsibility for their safe carriage or safety than may be incurred on their own road." The hack was injured 141 §562-566 NEGLIGENCE OF COMMON CARRIERS. while on the steamboat, in transit on the lake. Held, defendants not liable. Tolman v. Abbot, 78 Wis., 192. §562. Liability for mistake of agent. Goods sfhipped by rail to Chicago were plainly marked "J. Weil & Bros.," but the station agent entered them on the way- bill as "T. Weil & Co." When consignees called for the goods, they were told there was nothing for them; and the mistake was not discovered until the goods were destroyed with the depot by fire. Held, carrier was liable. Meyer v. Chicago & N. W. R. Co., 24 Wis., 566. §563. liability of carrier for goods mis-sent — when chargeable with knowledge possessed by agents. A railroad company is not liable for a mistake made by its agent in Chicago in forwarding goods directed to a point near the Hne of its road in Iowa, such agent having used due care and diligence, although its agents in Iowa knew the proper route for sending the goods. Congar v. 'Chicago & N. W. R. Co., 24 Wis., 157. §564. Warehousemen — duty of. Where the daily average of goods stored in a railroad ware- house does not exceed $500, ordinary care does not require the company to keep a night watchman about said premises, or have some one sleep therein. Pike v. Chicago,, M. & St. P. R. Co., 40 Wis., 583; Kronshage v. Chicago, M. & St. P. R. Co., 40 Wis., 587. §565. Same — same. In such a case, plaintiff's goods, of the alleged value of less than $800, having been destroyed by fire in defendant's ware- house, it was error to submit to the jury the questions, whether the goods might have been saved from burning if a night watch had been provided, or if some one had slept in the depot, and whether the absence of either of tliese was ordinary negli- gence. Id. §566. Warehousemen — liability of. As to goods in their possession merely as warehousemen, railroad companies are bound to no more than ordinary care, or such as a man of ordinary prudence would use in respect to his own property placed in like circumstances. Id. ' 142 NEGLIGENCE OF COMMON CARRIERS. §567-569 §567. Baggage. In an action against carrier for loss of baggage, it appears that plaintiff took passage on a steamboat, and, upon purchas- ing his ticket, asked for a key to the stateroom assigned him by the clerk or steward; but, being informed that they gave no keys, he replied that he did not care for that — all he wanted was to place his baggage in some room where it would be safe while he went down to get his trunk of samples checked. He deposited his valise in the unlocked room, calling the atten- tion of two or three cabin or saloon boys to the fact, asking their opinion whether it would be safe, and receiving an affirmative answer. When he returned to his room, after three-quarters of an hour's absence, the valise was gone. There was a porter or checkman on the boat, whose duty it was to receive and check baggage, which plaintiff knew. There was no evidence in the case of any custom of travelers to deposit their baggage in the manner plaintiff did ; nor of any usage of carriers by steam- boat, or of defendant in particular, to accept delivery in that way; nor of any specific direction or assent on the part of the carrier; nor was there any finding of the jury that the carrier was guilty of negligence in not providing the stateroom with a suitable lock and key, according to the custom of such carriers, and that such negligence caused the loss. Held, no delivery of the valise to the carrier, and he was not liable for the loss. , Gleason v. Goodrich Trans. Co., 33 Wis., 85. §568. Same — ^bailment. Where a railway passenger after arrival at the station of his destination takes his baggage into his own exclusive pos- session and control and afterward for his own convenience hands to the baggagemaster at the depot to be kept until sent for, the company is not liable for the baggage as a common carrier, and the bailment being gratuitous is liable only for gross negligence. Minor v. Chicago & N. W. R. Co., 19 Wis., 40. §569. Same — definition of. In general an article which is not carried by a traveler as one of merchandise, but as one of personal use and convenience to him, according to the wants of the particular class of passen- gers to which he belongs, and which is taken with him with reference to the immediate necessities, and not merely to the 143 §570576 NEGLIGENCE OF COMMON CARRIERS. ultimate purposes of his journey, will be regarded as properly a part of his baggage. Gleason v. Goodrich Trans. Co., 32 Wis., 85. §570. Same. So held, in the case of manuscript price book, which plain- ^ tifif carried TJvith him in his occupation as a commercial traveler, and used by him in making sales, to ascertain" values which he could not carry in his memory. Id. §571. Same — delivery of. Where personal baggage of a passenger on a steamboat is deposited by him in his stateroom, and such room is locked, the baggage will probably be Iheld tO' have been delivered to the carrier for transportation, and the latter will be liable in case the same is stolen. Id. §572. Same — same. Delivery of baggage to the servant of a carrier, in order to hold him responsible for the negligent loss thereof, must be to one intrusted to receive goods, and not to one merely engaged in other duties. Id. §573. Same — notice of conditions. If reasonable regulations of a carrier in regard to the man- ner of delivery of baggage are brought to the knowledge of a passenger, his consent thereto is not required to make them binding. Id. §574. Same — notice of regulations. A passenger by boat is under no obligations to know the contents of written or printed notices, posted in the boat in con- spicuous places, stating the carrier's regulations as to the delivery of baggage; though he is bound by such regulations, if reasonable, when informed of them in fact, whether by reading such notices or otherwise. Id. §575. Same — ^bailment. To charge a common carrier with the loss of property, it must be shown to have been delivered to him. for transporta- tion; and if there be an established usage in the carrier's busi- ness, delivery according to such usage must be shown. Id. §576. Bailee — duty and liability of. If a mandatory undertakes to carry an article from one 144 NEGLIGENCE OF COMMON CARRIERS. §577-581 place to another, he is responsible only for gross neglect, or a breach of good faith. But if he undertakes to perform, gratu- tuitously, some work or service relating to it, and actually enters upon the execution of the business, then he is bound to use a degree of diligence and attention suitable to the undertaking, and adequate to the performance of it. If he does it amiss, through the want of due care, by which damage ensues to the other party, am .action will lie for this misfeasance, and the party thus injured can recover to the extent of the injury. Jones V. Pafrish, 1 Finn., 494. §577. Gratuitous bailee — province of court and jury. A gratuitous bailee, without reward, is only liable for gross negligence. The facts proven should be submitted to the jury, whose duty it is to determine whether they amount to a case of gross negligence, undter the -charge of the court as tO' wlhat is gross negligence in law. It is the duty of the court to explain the law, and of the jury to find and apply the facts. Id. §578. Bailment — ^failure to deliver to consignee. Wheat was delivered to defendant's station at Eagle, for shipment to M. Consignee called for it at M. on several suc-i cessive days, but could not find it, and it was never found. Defendant was held liable for its value. Milwaukee & M. R. Co. v. Fairchild, 6 Wis., 403. §579. Same — duty of bailee. A railroad! company which stores in its own depot goods for consignees until called for, is bound to ordinary care, like other warehousemen, and bailees of goods to be kept for hire. Whit- ney v. Chicago & N. W. R. Co., 27 Wis., 327. §580. Same — return of empty grain sacks. Where, by the custom of a railway company, persons whose grain is shipped by its road are entitled to have the empty bags carried free, this is not a gratuitous bailment, so as to exempt the company ^rom liability except for gross negligence in case such empty bags are lost. Pierce v. Milwaukee & St. P. R. Co., 23 Wis., 387. §581. Contract — shipping on certain day and train. Where a contract was made witR defendant's freight agent for the transportation of certain goods upon a certain day and train, it is no evidence of the rescission of said contract that 10 145 §582-585 NEGLIGENCE OF COMMON CARRIERS. the shipper was subsequently informed by another grantee of the defendant that the goods could not be sent by that train if the cars should be full, it not appearing that such person was a freight agent of the company. Curtis v. Chicago & N. W. R. Co., 18 Wis., 312. §582. Same — owner to care for cattle. Where the contract by which cattle were carried provided that the owner was to take care of them at his own expense and risk, and assume all risk of injury that they might, do to themselves or to each other, mere proof thait the company had been carrying cattle for plaintiff without his presence upon the train did not show a waiver of this part of the contract. Chicago & N. W. R. Co. V. Van Dresar; 23 Wis., 511. §583. Same — transfer to next carrier. Where it is the general usage of a railroad company, in reference to goods carried by it to its terminus and marked for points beyond, to transfer them to the next carrier, and plaintii? contracted with reference to this usage, the company will be liable as carrier for injuries to the goods received before such transfer was completed. Hooper v. Chicago & N. W. R. Co., 27 Wis., 81. §584. Liability of carriers for cattle — ^right to make special contract. A common carrier may contract with the owner of live stock that he shall assume all risk of damage in course of transporta- tion, but whether it can enter into similar valid stipulations in regard to other kinds of property not decided. Betts v. Farm- ers' Loan & Trust Co., 21 Wis., 80. §585. Contract — delay in shipment. In an action for damages against a common carrier for flour, to deliver a consignment of flour at its destination within a reasonable time, a printed receipt was given the plaintiff containing the words "Contract from Neenah to New York at $2.25 per bbl." in writing. Held, that this was a contract by the defendant to transport the flour from Neenah to New York, and it was liable as a common carrier for the whole distance, and the contract being unambiguous in this respect, oral evidence as to its meaning was inadmissible. Peet v. Chicago & N. W. R. Co., 20 Wis., 594. 146 NEGLIGENCE OF COMMON CARRIERS. §586-590 §586. Same — interstate commerce. The validity of a contract for interstate transportation, in the absence of any legislation by Congress to the contrary, is to be determined by the common law. Davis v. Chicago, M. & St. P. R. Co., 93 Wis., 470. §587. Same — ^Lex Loci. A contract made in one state tO' be performed partly in that state and partly in 'another, is governed as to its validity and interpretation by the law of the place where it ~ was made, where it does not appear that the parties intended otherwise. Davis V. Chicago, M. & St. P. R. Co., 93 Wis., 470. §588. Contracts limiting liability. A contract which provides that in case of loss the carrier shall be liable to pay as damages only the sum specified in the contract of carriage, will not relieve the carrier from liability to pay the full value of the goods lost through its negligence (except through t^he fraud or concealment of the shipper), without an express agreement to that effect. So in an action against a carrier for the loss of a barrel of whiskey, the words "liquor carried at val. $20. per bbll" stamped , on the face of the receipt, held, to apply only to goods lost without fault of the carrier. Black v. Goodrich T. Co., 55 Wis., 319. §589. Same — injury to horses while unloading. In an action for injuries caused one of a lot of horses while unloading them to be fed and watered, the contract provided that "the company shall not be liable for the acts of the animals themsfelves, or to each other * * * * or from loading or unloading them." This should not be construed into a pro- vision to exempt the company from the consequences of its own negligence or the negligence of its servants, but rather to declare the exemption of the company from liability for such injuries as might be caused by reason of the natural pro- pensities of the animals themselves, or by the peculiar hazards of loading and unloading them. Loeser v. Chicago, M. & St. P. R. Co., 94 Wis., 571. §590. Same. It is well settled that a common carrier of persons or prop- erty cannot, by any agreement, however plain and explicit, wholly relieve himself from responding in damages to the party 147 §591-596 NEGLIGENCE OF COMMON CARRIERS. injured, when such injury is the result of the gross negligence or the fraud of the carrier, his agents or servants. Black v. Goodrich T. Co., 55 Wis., 319. §591. Same. It is also well settled that in order to exempt the carrier from liability for the want of ordinary care or negligence of any kind on the part of its servants or agents, the contract must so expressly provide; and that in the absence of such express agreement it will be presumed that there was no intention on the part of the carrier to exempt himself from such liability. Id. §592. Same — ^live stock. A common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reason- able in the eye of the law; and it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemp- tion from responsibility for the negligence of itself or its serv- ants. Abrams v. Milwaukee, L. S. & W. R. Co., 87 Wis., 485. §593. Same — same. There being no agreed valuation in the contract of carriage, the carrier cannot limit the liability for damages caused by the negligence of its employees, to $100 a head for each horse car- ried. Id. §594. Exemption from liability — public policy. A stipulation in a contract exempting the carriet from any liability, by negligence of his servants or otherwise, is void as against public policy. Davis v. Chicago, M. & St. P. R. Co., 93 Wis., 470. §595. Same — same. Express provisions in a contract of carriage that the carrier assumes liability only to the extent of an agreed valuation are not against public policy, even though the loss or damage be through the negligence of the carrier. Tlie latter must respond for its negligence at the agreed value. Loeser v. Chicago, M. & St. P. R. Co., 94 Wis., 571. §596. When liability ceases. The liability of a railroad company as a common carrier for the safety of passengers ceases after they have been aware of their arrival at the place of destination and have had a rea- sonable time to get off the train. Such reasonable time is the 148 NEGLIGENCE OF COMMON CARRIERS. §597-600 time within which persons of ordinary prudence in like circum- stances get off the cars. Imhoff v. Chicago & M. R. Co., 30 Wis., 344. §597. Same — ^warehousemen. The liability of a railroad company as a common carrier for goods transported upon its road, continues not only until the goods are deposited in the wareliouse of the company at the place of destination, but also until a reasonable opportunity has been afforded to the owner or consignee to take them away. The extent of such reasonable opportunity is not to be meas- ured by any peculiar circumstances in the situation of such owner or consignee, rendering it necessary for his own con- venience that he have a longer time for taking the goods away than would be required if he dwelt in the vicinity of the depot and were prepared with the means and facilities for that pur- pose. Wood V. Crocker, 18 Wis., 345. §598. Same — same. Plaintiff's goods were transported over defendant's railroad and reached the station at their place of destination near sundown and were taken from the cars and placed in, the ware- house of the company about dark on Saturday night, and a few minutes afterwards the walrefhouse, which was three-quarters of a mile from plaintiff's place of business, was closed for the night. Plaintiff's cartman had called for the goods about 3 p. m. on Saturday and was toFd by defendant's freight agent that he need not call again that day, as it would be late before the freight train would arrive. He was, however, informed about dusk that the goods had come, but made no effort to get them, as it was nearly time for the warehouse to close. Before Monday morning the goods were destroyed, together with the warehouse, without fault of the defendant. Held, that defendant was liable for the goods as a common carrier. Id. §599. Warehousemen — when liability of carrier attaches. The responsibility of a railway company as common carrier for goods which have been stored in its warehouse attaches whenever the duty of immediate transportation arises, and not until then. Schmidt y. Chicago & N. W. R. Co., 90 Wis., 504. §600. Special contracts exempting from liability, for gross negligence. A carrier cannot, by stipulations in a written contract, 149 §60I-604 NEGLIGENCE OF COMMON CARRIERS. exempt himself from a liability for personal injuries caused by the gross negligence of his servants. Lawson v. Chicago, St. P. M. & O. R. Co., 64 Wis., 447. §601. loss by fire — limiting liability for. To suport a contract limiting the liability of a common carrier, a consideration is necessary, and if the charges and services rendered are the same in all respects without as with the special contract, such contract is void for want of a con- sideration. But the presumption is that the rates are fixed with regard to the risk assumed, and this presumption will prevail in the absence of clear and satisfactory evidence to the contrary, and a stipulation in a contract absolving the carrier from all responsibility for loss by fire, not occasioned by its own negligence, is valid. Schaller v. Chicago & N. W. R. Co., 97 Wis., 31. §602. Same — directing verdict. Plaintiff, who had goods stored in defendant's warehouse, notified its agent that he had a car load ready to be shipped, and asked him if he could get a car and load them. The agent said that it was impossible to get a car that day, but that he would load them the next morning. Plaintiff said, "All right; I will be there to load them." He took no receipt at the time, because he was in the 'habit of being present at shipments and taking receipts then. That night the warehouse and goods were destroyed by fire without fault of the defendant. Held, that it was not so clear that the duty of transportation had not arisen prior to the fire as to justify the direction of a verdict for defendant. Schmidt v. Chicago & N. W. R. Co., 90 Wis., 504. §603. Same— liability for. Where plaintiff's goods, shipped by defendant's road, arrived at their destination at 5 :30 p. m., on Saturday, and were destroyed by fire in the depot about noon on the following Tuesday, plaintiff had a reasonable time to remove the goods, and defendant is not liable as a common carrier. The absence from the point of destination of the consignee during most of the time does not extend defendant's liability. Lemke v. Chi- cago, M. & St. P. R. Co., 39 Wis., 449. §604. Same — same — treasonable opportunity to remove goods. When goods in a railway depot are destroyed by fire three 160 NEGLIGENCE OF COMMON CARRIERS. §605-609 days after actual notice to the consignee of their arrival, the carrier is not liable. Backhaus v. Chicago & N. W. R. Co., 92 Wis., 393. §605. Reasonable regulations — stop-over ticket. A rule or regulation of a railway company requiring pas- sengers who ride upon its trains to procure from the conductor, or person in charge of the train, a stop-over dheck if they desire to stop before concluding their journey, or before reaching the point to which they have purchased a ticket, is a reasonable rule and binding on passengers riding on its trains. Yorton V. Milwaukee, L. S. & W. R. Co., 54 Wis., 234. §606. Same — same. If, in such case, the passenger receives from the conductor, by mistake, a trip or train check, instead of a stop-over ticket, the second conductor has a right to insist that he pay his fare or leave the train, or else eject him, using no more violence than is necessary, and such ejection, being lawful, would not give him a riglht of action against the company therefor, though he might recover damages for the wrongful act oJ the first conductor. Id. §607. Same — carriers of passengers. A carrier of passengers may establish any reasonable regu- lation which he may deem necessary for the safety of their tiaggage, and is not liable when a passenger, knowing of such regulation, loses his baggage through his own neglect or refusal to comply with it. Gleason v. Goodrich Trans. Co., 32 Wis., 85. ' 1 ■ §608. Same — stopping at way-station. In the absence of any express contract to the contrary, the holder of a railway ticket is tO' be carried over the road, accord- ing to the reasonable rules and regulations of the company; and the company cannot be compelled to stop the train and discharge a passenger at a station where, by tihe . reasonable rules and regulations of the company, the train does not stop. Plott V. Chicago & N. W. R. Co., 63 Wis., 511. §609. Same — same. Inasmuch as the passenger cannot compel the stoppage of the train, the duty of the company is fully discharged by inform- ing her in due time that the train would not stop at such station, 151 §6lO-6l2 NEGLIGENCE OF COMMON CARRIERS. and permitting her to leave the train at some station before arriving at that place. Id. §610. Same — question for jury. The question of reasonableness of regulations of a railway- company, affecting third persons, is generally a mixed question of law and fact; and it is always proper to submit' such a ques- tion to the jury, under instructions. Bass v. Chicago & N. W. R. Co., 36 Wis., 450. §611. Same — ^ladies' car. There was some evidence tending to show that plaintiff, being a passenger on defendant's train, to which a ladies' car was attached, was, with other male passengers, left by the officers of the train without a seat, there being no unoccupied seats except in the ladies' car (and in the smoking car, where he was bound to remain) ; and that he and the others stood for some time in the ordinary passenger cars, without attention from the officers of the train. Held, that upon these facts, in the absence of any special excuse for the neglect, the officers were guilty of a breach of duty to such passengers. Id. §612. Same — same. There was evidence that plaintiff went to the ladies' car for a seat; that he found the door at first locked, but that, on its being unlocked by a brakeman, he entered, or attempted to enter the car. The evidence is conflicting as to whetlier he entered the car peaceably and Without being forbidden, or was forbidden and attempted to enter forcibly. In either case, he was forcibly driven upon the platform while the train was cross- ing a river, where a fall from the platform would probably have proved fatal. Held, (1) That if plaintiff entered the car peace- ably, such entrance not being either barred or forbidden by the officers, this must be regarded, under all the circumstances, as equivalent to a license to him to enter. (2) That if plain- tiff was thus rightfully in the ladies' car, no officer of the traiij could rightfully remove him by force, at least without offering him a seat elsewhere. (3) That in any event the brakeman could not be justified in violently throwing plaintiff on the platform, under the circumstances of special danger above stated. (4) That if plaintiff's entrance to the ladies' car was barred or forbidden, he had no right to enter, or attempt an entrance by force. Id. 152 NEGLIGENCE OF COMMON CARRIERS, §613-616 §613. Same — same. Considering it as a question of law, this court regards as eminently proper and reasonable a regulation of the defendant company by which one car on each passenger train is set apart, primarily, for the use of women, and men traveling with them. Such a regulation must be reasonably enforced. And the continued validity of the regulation does not depend upon its being uniformly and indiscriminately enforced, against all' men not accompanied by women. If there be no sitting room in the regular passenger cars for passengers excluded by such regulation from the ladies' car, and there be room to seat them there, they cannot be left standing without breach of the contract of carriage. In such a case, however, the object of the regulation requires that the selection of the persons to be admitted into the ladies' car shall still rest in the discretion of the proper officers of the train; and it is not consistent with the general comfort, convenience and safety of the passengers, for one to assert his right, without license or excuse, and by force, to make his way into a car from whidh he is excluded by the regulation. In the enforcement of order upon a train, and in the execu- tion of reasonable regulations for the safety and comfort of the passengers, and the security of' the train, the authority of the ofiftcers, exercised upon the responsibility of the railroad com- pany, must be obeyed by the passengers. Id. §614. Duty to passenger — negligence. It is not the duty of a common carrier of passengers to restrain a passenger by force on a train from going near a place of danger when such danger is. obvious and the defendant has provided a safe place for the passengers to remain. Conroy v. Chicago, St. P. M. & O. R. Co., 96 Wis., 243. §615. Same — safe stations. A carrier owes to his passenger, while that relation exists, the duty of providing reasonably safe stations, whether perma- nent or temporary, where he may await the arrival of trains as well as the duty to seasonably warn him when reasonably necessary of any existing or apprehended danger wihich may interfere with or peril his personal safety. Id. §616. Free pass. A railway company carrying a person on a free pass may 153 §617-621 NEGLIGENCE OF COMMON CARRIERS. by contract relieve itself from all liability for damage to hjm or his baggage for a want of ordinary care on the part of its serv- ants, but not from liability for damages caused by the gross or criminal negligence of such servants. Annas v. Milwaukee & N. R. Co., 67 Wis., 46. §617. Exposing passenger to risk or unnecessary incon- venience. Where a railway company, by its negligence, compels a passenger to chose between incurring some risk in leaving the train, and being exposed to other inconveniences to which it has no right to expose him, and 'he is injured in getting off under circumstances which would not prevent a person of ordinary prudence from doing so, the company is liable. Delamatyr v. Milwaukee & P. du. C. R. Co., 34 Wis., 578. §618. Relative duty as to passengers and employees. The same degree of care is not, as a general rule, required of the company in respect to its employees as is required in respect to its passengers, and a presumption of negligence in the company in favor of a passenger might arise under circum- stances which would not i-aise such presumption in favor of an employee. Lockwood v. Chicago & N. W. R. Co., 55 Wis., 50. §619. Same — trains. A regulation of a railway company that two passenger trains running between the termini should not stop at a certain intermediate station, tihere being two other passenger trains daily which do stop at^such station, is reasonable. Plott v. Chi- cago & N. W. R; Co., 63 Wis., 511. §620. Same — same. Proof on the trial that the company had before that time occasionally stopped its trains at such station to permit pas- sengers to alight there, did not estop the company running its train in the ordinary way, nor make it its duty to stop on the occasion in question. Id. §621. Duty of passengers — whether train stops at desti- nation. It is the duty of the passenger to ascertain for himself whether the train upon which he takes passage will carry him and put him ofif at the destination to which he wishes to be carried. Plott v. Chicago N. W. R. Co., 63 Wis., 511. 154 NEGLIGENCE OF COMMON CARRIERS. §622-626 §622. Ejection of passengers for not paying fare. Plaintiff purchased a ticket on another railroad, and by mis- take got on defendant's train. The conductor put her off at a point that was a flag station for both roads. The station was locked, and plaintiff .with her two children were compelled to wait several hours in oold and inclement weather, and a severe illness followed the exposure. Whether she showed her ticket to defendant's brakeman, or wihether defendant's conductor demanded her fare, were disputed questions. Held, if she showed her ticket to brakeman, the conductor was not justi- fied in putting her off at the flag station, unless that was a reasonably convenient and safe point from which she could most expeditiously reach a train on the proper road. If she did not show her ticket to brakeman and conductor demanded her fare, and she refused to pay, he was justified in putting her off as he did. Patry v. Chicago, St. P. Ml. & O. R. Co., 77 Wis., 218. §623. Same. A passenger going upon a train at a station at which tickets are not sold cannot lawfully be charged more than the regular fare because of his not having a ticket, even though a process is created by which he may at some future time get back such excess. Phettiplace v. N. P. R. Co., 84 Wis., 412. §624. Same. One who had bought a ticket from S. to P., decided, before reaching P., to go on to T., the next station beyond. There was no ticket office at P. Held, that he could not lawfully be charged more than the regular rate from P. to T. Id. §625. Ejection of passenger having ticket on another road. Where plaintiff having a ticket over another road showed it to the conductor or brakeman of defendant's train and he assisted in putting her on the train the conductor was not justi- fied in putting her off at a station which was not a reasonably safe and convenient point from which she could most expedi- tiously reach a train on the proper road. Patry v. Chicago, St. P. M. & O. R. Co., 82 Wis., 408. §626. Ejecting passenger— where may be done. Sec. 1818 R. S., providing that if any passenger sihall refuse to pay his fare it shall be lawful to put him off the cars at any usual stopping place or near any dwelling house, by necessary 155 §627-630 NEGLIGENCE OF COMMON CARRIERS. implication prohibits his expulsion at any other place. Phetti- place V. N. P. R. Co., 84 Wis., 413. ^627. Ejection of would-be passenger from freight train. The conductor of a freight train is acting within the scope of his authority in ejectin^g therefrom a person who attempts to ride as a passenger on a train which did not carry passengers; but if by reason of any imprudent, reckless or wanton con- duct on the part of the conductor in compelling him to leave the train, or by putting him off while the train was in motion, or the circumstances rendered it imprudent or dangerous to do so, and such person is injured in consequence thereof, the defendant .is liable. Stone' v. C. St: P. M. & O. R. Co., 88 Wis., 98. §628. Carrying passengers on freight trains. In an action for personal injuries received by plaintiff in being thrown from a caboose attached to a freight train of defendant's company, the question of law involved was whether plaintiff was lawfully aboard said caboose as a passenger. The evidence showed that the company permitted passengers to be carried on some of its freight trains, and that plaintiff went aboard the caboose not knbwing that the train was not one of those authorized to carry passengers and not beirig informed of the contrary before going on board, nor before receiving such injuries, but having been directed to the train and being per- mitted to get on by a person whom the jury, from the evidence, might have found to be an employee of the company, or per- haps .the conductor of the train. Held, upon these facts, the jury might find plaintiff was lawfully aboard as a passenger. Lucas v. Milwaukee & St. P. R. Co., 33 Wis., 41. §629. Same. The ticket office was not opened for sale of tickets except a short time before arrival of passenger trains, and the freight trains did not draw up to the station, nor was the caboose well fitted for carrying passengers, and the plaintiff was not charge- able with notice that this particular train would not carry him as a passenger. Id. §630. Liability for injury to persons taken as passengers on freight trains. Where a railway company permits passengers to be usually carried on some of its freight trains, if a person goes aboard 166 NEGLIGENCE OF COMMON CARRIERS. §631-632 one of its freight trains supposing it< in good faith, to be one of those on which passengers are thus carried, and not being informed of the contrary before receiving an injury to his per- son caused by the management of the train, and there being nothing in the situation or condition of the train showing that passengers are not carried upon it as well as upon any other freight trains of the company, such person will have the right of a passenger in respect of such injury, and especially will this be so if he is directed to go aboard by one he supposes to be the conductor of the train, although such conductor has in fact no authority from the company for that purpose. Lucas v. Milwaukee & St. P. R. Go., 33 "yVis., 41. §631. Duty to have platforms safe for persons accompany- ing passengers. The rule that it is the du'ty of a railway company to have its station platform reasonably safe for persons accompanying an intending passenger who is a:bout to take a train in the course of regular passenger traffic, does not extend to the case of persons accompanying one who is about to^ leave in a freight car in charge of live stock, although he had been allowed to load such stock into the car at the freight platform on one side of the station (instead of at the stockyards as was customary), from which place the car was to be taken at night by a freight train wihich did not usually stop at the station and was not allowed to carry passengers, and for which the station was not kept open, although .he and his friends had been allowed by the agent to occupy the waiting room. Dowd v. Chicago, M. & St. P. R. Co., 84 Wis., 105. §632. Negligence — perishable freight. A car of berries, in good condition, and properly received so the contents would keep in the hottest weather until the fol- lowing afternoon, was delivered to a common carrier, and by it delivered to a connecting carrier, the defendant, about 1 :45 p. m. the following day; .that defendant allowed the car to remain on the track, without replenishing the ice, until in the evening, and that on delivery to the plaintiff, nearly 24 hours later, the berries were greatly damaged. There was no direct proof of the condition of the berries at the time they were received by the defendant, but the defendant had means of information on that point, which the plaintiff had not, and the 167 §633"637 NEGLIGENCE OF COMMON CARRIERS. question of .the negligence of the defendant required the sub- mission of the case to the jury. Lamb v. Chicago, M. & St. P. R. Co., 101 Wis., 138. §633. Same — evidence of. The reception in evidence of a telegrarn from defendarit's agent to its claim agent, to the effect that when the car was inspected, it was one third 'full of ice, and the berries in apparent good order, was not harmful to the defendant. Id. §634. Negligence of carriers. Certain goods were delivered to defendant in New York for transportation to Racine. It was about eleven days before they were received at Buffalo, the Usual time of transit being three days. Upon the arrival at Buffalo they were placed on board a vessel, which was lost by perils of the sea, and the goods with it. Held, that the delay in transporting the goods from the city of New York to Buffalo, is prima facie negligence, and casts upon the defendant the burden of showing the delay was unavoidable. Falvey v. Northern Trans. Co., 15 Wis., 129. §635. Presumption of negligence from non-delivery. The default of a carrier in not delivering goods as it con- tracted to do, and its admission that the same are lost vso that it cannot make delivery, is presumptive evidence of negligence on its part. Black v. Goodrich Tr. Co., 55 Wis., 319. §636. Action — costs. An action against a railroad company for goods destroyed in defendant's warehouse while awaiting delivery to the next carrier, was founded on the alleged custom of defendant in regard to the transfer of goods carried by it, consigned to points beyond its line, and the gravamen was the alleged breach of duty. Held, the action was in the nature of one for tort, and the amount recoverable for attorneys' fees was not limited to $25. Wood V. Milwaukee & St. P. R. Co., 33 Wis., 398. §637. Same — tort or contract. The complaint alleged that plaintiff and others contracted with defendant to carry them from M. to W. and return, on a certain Sunday, to attend religious ceremonies. Tlie train was to leave W. on the return at 5:30 p. m., but defendant did not have train ready to bring them back at the proper and appointed time, but willfully, fraudulently and negligently 158 NEGLIGENCE OF COMMON CARRIERS. §638-642 failed and refused to furnish any means to bring them back, by reason whereof plaintiff was greatly injured in bodily health, sufifered great pain and anxiety of mind, lost much time from business, and was subjected to indignities and insults from the employees of the company. A second count, similar in other respects, alleged that agent of plaintiff and others agreed with defendant to p^y a certain sum for the special train. Held, the action was upon special contract, and not in tort. Walsh v. Chicago, M. & St. P. R. Co., 43 Wis., 23. §638. Same— Sunday. No action could be sustained against the defendant for a preach of its general duty as a carrier, upon the facts alleged, defendant being under no obligation to carry any person on Sunday. Id. §639. Duty of carrier. It is the duty of a common carrier of passengers to provide and maintain safe alighting places, and it niust respond in dam- ages to a passenger who, without contributory fault on his part, is injured by a negligent failure to perform this duty. It is the duty of a railway carrier to make it safe for its passengers to leave its cars, and in the case of female passengers at least they have a right to expect aid or assistance from the brakeman or some other employee of the company to assist them in alighting. McDermott v. Chicago & N. W. R. Co., 83 Wis., 246 and cases cited on page 251. §640. Duty to furnish cars when able. A common carrier of live stock for hire, with the proper restrictions and limitations of its common-law liabilities, and holding itself out to the public as such, is bound to furnish suit- able cars for such stock, upon reasonable notice, whenever it can do so, with reasonable diligence without jeopardizing its other business as such common carrier. Ayres v. Chicago & N. W. R. Co., 71 Wis., 373. §641. Burden of showing inability. The burden of sihowing such inability, in a particular case, with diligence and without jeopardy to its other interests, is upon the railway, company. Id. §642. When cartman agent of company. It was defendant's custom, as to goods carried by it to Chi- 159 §643-647 NEGLIGENCE OF COMMON CARRIERS. cago, destined for Boston, to deposit them in a certain part of its warehouse, to be taken thence by one H., a cartman, to the depot of a certain railroad running thence eastward. Held,. upoo the evidence in the case, that H. was merely defendant's agent for transferring the goods, and not an independent car- rier, although, he was in the habit of advancing defendant's charges, and collecting the amount thereof, with "his own cart- age, from the next company. Hooper v. Chicago & N. W. R. Co., 27 Wis., 81. §643. Shipper as owner. Where flour was by the shipper sold "to arrive at Boston," the title remained in hijn until such arrival. Hooper v. Chi- cago & N. W. R. Co., 37 Wis., 81. §644. Mistake by shipper in address — ^fire. Where goods received by a carrier for transportation beyond its line have duly arrived at the place to which the shipper had erroneously consigned them, the liability of the carrier as such has terminated; and where the carrier's agent, at request of shipper, caused proper directions to be forwarded to the place where the goods were, but before such directions were carried into effect, goods were destroyed by the burning of the warehouse in w'hich they were stored, the undertaking of carrier's agent was a mere gratuitous agency, which would not render it liable for the loss. Treleven v. Northern P. R. Co., 89 Wis., 598. §645. Delay in shipping freight. There is no invariable rule requiring freight to be carried in the order received without regard to its character and condi- tion, or its liability to perish. Peet v. Chicago & N. W. Co., 30 Wis., 594. §646. Goods ready for delivery to consignee. In the absence of proof to the contrary, the presumption is that goods are ready for delivery to a consignee at any time after they are received at the carrier's depot at the place of destination. Lemke v. Chicago, M. & St. P. R. Co., 39 Wis., 449. §647. When time for delivery sufScient — question for jury- The question whether consignee had a reasonable time to 160 NEGLIGENCE OF COMMON CARRIERS. §648-65 I remove his goods should be submitted to the jury, under proper instructions, when there is a conflict of evidence as to material facts, or where the facts are doubtful or complicated and the court cannot satisfactorily determine their weight or impor- tance. But when the facts are few and simple, and are con- clusively established by a special finding or the undisputed! evidence, the question of a reasonable time is for the court. Id. §648. live stock injuries while unloading horses. In an action against a railway company for injuries received by one of a lot of horses which were being unloaded to be fed and watered, the question as to whether it was negligence to drive the horses loose into the pen, instead of leading them separately, so as to have them at all times under safe control, is for the jury. Loeser v. Chicago M. & St. P. R. Co., 94 Wis., 571. §649. Live stock — notice to shipper of inability to furnish cars. A railway company is liable for damages resulting, from its neglect to furnish cars for the shipment of live stock, when the shipper requests such cars to be furnished at a time and station named, and, not being notified by defendant within a reasonable time of its inability to furnish such cars, the plain- tiff present at the time and placed named,' and finds no cars ready. Ayres v. Chicago & N. W. R. Co., 71 Wis., 373. §650. Same. A 'railway company engaged in the business of transport- ing live stock over its roads, and accustomed to furnish suit- able cars therefor, upon reasonable notice, whenever within its power to do so, and holding itself out to the public generally as such carrier for hire upon the terms and conditions in a special written contract with shippers, is a common carrier of live stock, with such restrictions and limitations of its com- mon-law duties and liabilities as arise from the instincts, habits, propensities, wants, necessities, vices or locomotion of such animals under the contracts of carriage. Id. §651. Same — Pliability for injuries. Where the owner of cattle (or his agent) shipped by railroad, who undertook to put them on the car, knew that the door of the car was in an unsafe condition, and neglected to inform the! station agent, who was ignorant of the fact, he could not 11 161 §652-655 NEGLIGENCE OF COMMON CARRIERS. recover for injuries received by the cattle in escaping from the car in consequence of such defect. Betts v. Farmers' Loan &' Trust Co., 21 Wis., 80. §652. Liability for defective cars — live stock. It is the duty of a railroad company, as a common carrier of live stock, to furnish suitable cars therefor, on reasonable notice so to do from a person desiring to transport live stock over its road; that this duty is absolute, and a contract exempting it from liability for damages arising from unsuitableness of cars so furnished, attributable to a failure on its part to exercise ordinary care, is void); that if a car be furnished having defects rendering it unsuitable, which defects are not obvious or such as may be presumed that an inspection by an ordinary person will bring to his knowledge, and yet are such that a reasonably careful inspection by a person experienced in sudh business will lead to their discovery, an inspection and accept- ance of the car by the shipper will not save the carrier harm- less from damages caused by sudh defects unless it be shown that they were actually pointed out to the shipper, and that he accepted the car with full knowledge of their existence. Leon- ard V. Whitcomb, 95 Wis., 646. §653. Perishable freight — duty of first carriers. Where a carrier accepts perishaible freight for transporta- tion over its own and connecting roads, it must to the extent of its ability forward them promptly until it delivers, or offers to deliver, them to the connecting carrier, and it is not excused for delay merely because its agent supposed there would be a delay by the connecting carrier in forwarding the freight. Blodgett V. Abbot, 72 Wis., 516. §654. Round-trip tickets — accidental separation of parts. A round-trip ticket, which provides that the returning part is "not good for passage if detached," and which has become separated by inadvertence, and both parts are presented together at the same time to the conductor on the going trip, is good. Wightman v. Chicago & N. W. R. Co., 73 Wis., 169. §655. Interrupted transit— relation of carrier and pas- senger. The relation of carrier and passenger exists between a rail- way company and one who had been a passenger on its train, but which train was interrupted by a wreck upon the track, 162 NEGLIGENCE OF COMMON CARRIERS. and the passenger left the train for a place beyond the wreck, in accordance with the directions of defendant's servants, there to await the arrival of another train upon which to complete his journejr. Conroy v. Chicago, St. P. M. & O. R. Co., 96 Wis., 343. 163 CHAPTER V. NEGLIGENCE OF MUNICIPAL CORPORATIONS. a. Charter and other statutory provisions, b. Notice, and require- ments thereof, c. Defective highways, d. Defective side- walks, e. Miscellaneous defects., f. Liability, g. Travelers. h. Frightened horses. a. Charter and other statutory provisions. §656. When action lies — claim or demand. Although there is a provision in a city charter that no action can be maintained on any claim or demand against it until the same has been presented to the common council and disal- lowed, or unless such council has neglected to act on it for a certain time, this does not prevent an action based upon a contract made by the allowance by the council and acceptance by the plaintiff of a certain sum in settlement of a claim for a larger amount. Sharp v. City of Mauston, 92 Wis., 629. §657. "Claim or demand" — meaning of. The words "claim or demand," as used in city charters, include only such claims or demands as arise upon contract, and do not include a cause of action for personal injuries received by reason of a defective street or sidewalk. Vogel v. City of Antigo, 81 Wis., 642; Kelley v. City of Madison, 43 Wis., 638; Bradley v. City of Eau Claire, 56 Wis., 168; Hill v. City of Fond du Lac, 56 Wis., 242; Jung v. City of Stevens Point, 74 Wis., 547; Sommers v. City of Marshfield, 90 Wis., 59. §658. Same — same — repair of sidewalks. The provisions of a city charter that no action shall be main- tained by any person against such city upon any claim or demand, unless such person shall have first presented his claim to the city council, apply solely to claims or demands arising on contract. And an amendment to such section making it the duty of the adjoining owner to keep his sidewalks in repair, or compel him to pay damage caused by such neglect, does not change the construction which should be given to the words "claim or demand." Jung v. City of Stevens Point, 74 Wis., 547. 164 CHARTER AND STATUTES. §659-662 §659. Same — "of whatsoever nature." A city charter provided that "no action shall hereafter be maintained by any person against tlje city of F. tipon any claim or demand of whatsoever nature, other than a city bond or order," unless such claim or demand shall be first presented to the common council of the city. The words "of whatsoever nature," having been added to defendant's original charter, were intended obviously to enlarge the term "claim or demand," and manifestly tO' include tort actions. Vogel v. City of Antigo, 81 Wis., 642, distinguished; Van Frachen v. City of Fort Howard, 88 Wis., 570. §660. Same — "of any kind or character" — appeal for dis- allowance. A city oharter provided that "no action shall be maintained by any person' * * * upon any claim or demand of any kind or character whatsoever, until such person shall haVe presented his claim or demand to the common council for allowance, and the same shall have been disallowed in whole or in part," and further, that "the determination of the common council disallowing, in whole or in part, shall be final and con- clusive, and a bar to any action in any court founded on such claim, unless an appeal be taken from the decision of such common council, as in this act provided," which time was 20 days. This was construed as applying to a claim for personal injuries sustained by reason of defendant's alleged neglect in supplying piaintiff with good, safe and suitable tools to work with. McCue v. City of Waupun, 96 Wis., 625. §661. Disallowance of claim — appeal — limitation. Where a city charter provides that the failure of the com- mon council to act upon a claim presented to it within 60 days is to, be taken as a disallowance of the claim, and the right to appeal therefrom must be taken within 20 days after such dis- allowance, and that after such disallowance, in whole or in part, the common council shall not again consider or allow such claim, such council cannot after the disallowance be accom- plished extend the time for said appeal' by an express vote of disallowance. Seegar v. City of Ashland, 101 Wis., 515. §662. Same — bond on appeal. Where a city charter provides that all claims must be pre- sented to the board of aldermen for allowance, and that their 165 §663-666 MUNICIPAL CORPORATIONS. determination shall be final, unless an appeal be taken to the circuit court of the county, as in said charter provided, a bond wherein the appellant is bound to ''faithfully prosecute said appeal in the circuit court, and pay all costs which shall be adjudged against him in said circuit court," complies with the charter provisions. Stephani V. City of Manitowoc, 101 Wis., 59. §663. "Claim of any character" — meaning of — appeal from disallowance. The provisions of a city chartpr that "no suit of any kind or any claim of any character shall be brought against said city, but the claimant shall file his claim with the city clerk for action of the council thereon, and * * * * jnay appeal to the circuit court," and that "the comptroller shall examine all claims presented against the city, whether founded on contract or otherwise, and report the same to the council," — apply to a claim for injuries caused by a defective sidewalk, and an inde- pendent action therefor cannot be maintained. Koch v. City of Ashland, 83 Wis., 361. §664. Same — tort action — verification before comptroller. A city charter provided that "all accounts or demands' against the city, before the same shall be acted upon or paid, shall be verified by affidavit before the comptroller, except salaries and amounts previously fixed or determined by law." Held, that such verification was not a condition precedent to the maintenance of an action for personal tort, and that it may well be doubted whether it is a condition precedent to the main- tenance of any action in court. Hill v. City of Fond du Lac, 56 Wis., 243. §665. Same — same. The provisions of a city charter that no action shall be main- tained against such city "upon any account, claim, demand or cause of action, wherein any money judgment or judgment for damages is demanded, until" such account, claim, demand or cause of action is first presented to the board of aldermen for allowance or adjustment, and that their determination shall be final and conclusive, unless an appeal be taken as in said char- ter provided, — apply to tort as well as contract demands. Stephani v. City of Manitowoc, 101 Wis., 59. §666. Same — same — same — original action. One section of a city charter provides that no action in tort 166 CHARTER AND STATUTES. §667-669 shall lie against the city, unless a statement in writing, etc., shall be presented to the common council within 60 days; the next section provides that no action shall be maintained upon any claim or demand until it has been presented to the council, and been disallowed in whole or in part; the next section provides that the determination of the council thereon shall be final and conclusive, unless an appeal be taken; and the next section pro- vides for the manner of appealing. Held, that as to torts, Hhere is a right of original action against the city; for "claims or demands," the right of action is by appeal, and they cannot be interchangeable. As to torts, there is nothing to appeal from, and as to claims or demands, there is no right of original action. The words "claims or demands" refer only, to causes of action arising ex contractu. Vogel v. City of Antigo, 81 Wis., 642. §667. Same — same — same. A city charter provided for an original action against the city in a case of tort , immediately upon presentation of the writ- ten statement of the wrong to the common council. The com- mon council disallowied the claim, and defendant appealed. Held, no appeal being authorized, the court had no jurisdiction to entertain the appeal, even by consent of the parties. Id. §668. Same — account A demand arising ex delicto is not in any correct sense an "account"; and it seems that such a demand against a town is not within the jurisdiction of the town board, nor within the meaning of Sec. 79, Ch. 15 R. S., and that it is no objection to an action on such demand, that it has never been presented to the town board. Jaquish v. Town of Ithaca, 36 Wis., 108. §669. Same — presentation to council — appeal from disal- lowance. A city charter provides that "no action shall be maintained by any person against the city upon any claims or demands of any kind whatsoever, whether arising from contract or other- wise, until such person shall first have presented such claim or demand to the common council for allowance," and that "the determination of the common council, disallowing in whole or in part any claim of any person, shall be final and conclusive, and a perpetual bar to any action in any court founded on such claim, except that such person may appeal to the circuit court, as provided in "another part of said" charter." Held, that this 167 §670-675 MUNICIPAL CORPORATIONS. does not deprive the circuit court of jurisdiction of such actions originally brought therein; and that the objection that such a claim has never been presented to the common council must be taken by demurrer or answer, or it is waived. Sheel v. City of Appleton, 49 Wis., 125. §670 — Same — same — same. A city charter provided that the disallowance of a claim by the common council shall be "final and conclusive, and a per- petual bar to any action in any court fdunded on such claim," unless an appeal be taken within a time therein specified. Held, such provision necessarily operated as an extinguishment of the claim, unless waived. Watson v. City of Appleton, 63 Wis., 367. §671. Same — pleading. Where an appeal is taken from the action of the common council, the complaint filed therein should show the plaintiff had the right, or had not waived the right, to maintain the action. Id. §672. Claims required by Sec. 821 R. S. The presentation of claims required by Sec. 831 R. S., as amended by Ch. 113, Laws of 1882, refers only to accounts, and not to a claim for damages arising ex delicto. See Jaquish v. Ithaca, 36 Wis., 108; Spearbracker v. Town of Larrabee, 64 Wis., 73. §673. Same — under Sec. 824 E. S. — commencement of action. Under Sec. 824 R. S., which provides that "no action upon any claim shall be maintained against any town unless a state- ment or bill of such claim shall have been filed with the town clerk to be laid before the town board of audit, nor until ten days after the next annual town meeting thereafter," the mere failure to state in the complaint when the action was com- menced is not a defect. Welsh v. Town of Argyle, 85 Wis., 307. §674. Same — under Sec. 893 R. S. Sec. 893 R. S., requiring demands to be presented for audit to the village board, does not include actions or claims for per- sonal forts. Barrett y. Village of Hammond, 87 Wis., 654. §675. Same — condition precedent to bringing action. In an action against a town and village jointly for injuries 168 CHARTER AND STATUTES. §676-679 caused by a bridge therein obstructing navigation, the filing of the claim required by Sec. 824 is a condition precedent to the bringing of the action, but it is not necessary to give the notice specified by Sec. 1339 R. S., the latter section not apply- ing to an obstruction of a navigable river by an approach. Weisenberg v. Winneconne, 56 Wis., 667. §676. Same — commencement of action. The presentment of a claim to the town clerk, when the town board of audit is not in session, is in effect a presentment to such board, so that, under Sec. 4343 R. S. it shall be "deemed the commencement of an action within the meaning of any law limiting the time for the commencement of an action thereon." Parish v. Town of Eden, 63 Wis., 373. §677. Notice under Sec. 824 R. S.— may be filed before that under Sec. 1339 R. S. The claim for personal injuries caused by a defective high- way in a town, under Sec. 834 R. S., may be filed before the notice required by Sec. 1339 R. S. Groundwater v. Town of Washington, 93 Wis., 56. §678. Presentation of claim — adjustment of — accord and satisfaction. The rule that an accord must be followed by a satisfaction in order to be binding, does not mean that the parties cannot, by an executory contract, liquidate a disputed claim, so that such contract can be enforced by either party to it. So held, under following facts: A claim for $500 for dam- ages from a fall on a defective walk was presented to the com- mon council, who referred it to a committee, who reported in favor of alloviring it at $400, and the council adopted resolutions allowing it at that sum. Plaintiff thereupon duly demanded the issuance of a city order therefor, which was refused, and he then brought suit for $400 on the new contract. The demand for the city order for the amount so allowed constituted an un- conditional acceptance of the settlement, and made a binding contract for the payment of the sum allowed. Sharp v. City of Mansion, 93 Wis., 639. §679. Action on contract — mandamus unnecessary. Although a city charter provides that no money shall be drawn from the treasury, except on an order signed by the' 169 §68o-682 MUNICIPAL CORPORATIONS. mayor and city clerk, it is not necessary to proceed by mandamus to compel those officers to sign an order, but the claimant may proceed by an ordinary suit at law against the corporation, if he so elect. Sharp v. City of Mauston, 93 Wis., 639. §680. Actual notice of defect — ^pleading. Where a city charter provides that the city shall not be liable for any damage caused by any defect in a sidewalk therein, "unless the street commissioner shall first have had actual notice of such defect, and reasonable time thereafter to repair the same," a complaint for such damage which alleges that the city had "due notice" of the defect, is held, sufficient on demurrer^ though the plaintiff might, perhaps, on motion for that purpose, have been required to make the complaint more definite and certain in respect to the manner of such notice. Kusterer v. City of Beaver Dam, 52 Wis., 146. §681. Actual notice — ^time unreasonably short — nuisance created by city. A provision in a city charter that no action shall be main- tained against the city for an injury received through any de- fect in the condition of the street, unless notice in writing be given to certain officers within five days of the occurrence of such injury, is not applicable where the defect is caused by an obstruction placed in the street (in this case, a large wooden roller) by the servants of the city. The time of five days is un- reasonably short, is an arbitrary and unreasonable provision, and might be considered invalid. Hughes v. City of Fond du Lac, 73 Wis., 380. §682. Same — knowledge of defect three days prior to accident — duty of officers. A city charter provided the city should not be liable for any damages arising from a defective walk, street, gutter, etc., being out of repair, unless one of the officers of city had actual knowledge of the defect causing the accident, for three days prior thereto. Held, that where some of the city officers had actual knowledge of the defect, and failed to guard the interests of the public by neglecting to put up barriers or signals, the city was liable although such defect had existed but a few hours. Cantwell v. City of Appleton, 71 Wis., 463. Parish v. Town of Eden, 63 Wis., 273, to same effect. 170 CHARTER AND STATUTES. §683-686 §683. Same — presumptioii of knowledge — evidence as to general condition of walk. A city charter provides that the city shall not be liable for any damages growing out of any sidewalks, etc., being in a defective or dangerous condition, or out of repair, unless the same shall come to the knowledge of one of the aldermen of the ward, and th^t no such knowledge shall be presumed, unless such defect existed for three weeks before the accident occurred, and that such knowledge should not be presumed merely because three weeks had elapsed. Held, that in the absence of pfoof of such actual knowledge, it was necessary to prove that the defective condition had existed for three weeks prior to the accident, and also facts sufficient to charge the proper officials with notice; also, that evidence of the general condition of the sidewalk for three weeks before the accident can be received, and not confined to evidence as to the particular plank which caused the injury. Sullivan v. City of Oshkosh, 55 Wis., 508. §684. Same — same — defect existing for three weeks. A city charter declares that the city shall not be liable for the injuries from any defect in a sidewalk, unless it be shown that one of the aldermen of the proper ward had knowledge of the defect; and that such knowledge shall not be presumed, unless the defect existed three weeks before the injury; "pro- vided, that nothing herein shall be construed to mean that knowledge is to be presumed because such three weeks had elapsed." Held, that knowledge, or notice, may be presumed, under this statute, where the defect has existed three weeks, in any case where such presumption would have arisen before the statute. Studley v. City of Oshkosh, 45 Wis., 380. §685. Statutory notice superseded by charter provision. Where a city charter provides that no action of tort shall be maintained against the city unless a statement thereof shall be presented to the common council within 90 days, it is at vari- ance with Sec. 1339 R. S., and practically supersedes the latter in such city, and it is essential that the complaint allege the giving of the notice as required by the charter. Plum v. Fond du Lac, 51 Wis., 393, distinguished; Hiner v. City of Fond du'Lac, 71 Wis., 74. §686. When notice to alderman notice to city. Where a city charter provides that the "common council 171 §687-690 MUNICIPAL CORPORATIONS. shall have control and power over and management of all streets, alleys, lanes and public grounds in said city," notice to an alderman of a defective highway is notice to the city. McKeigue v. City of JanesVille, 68 Wis., 50. §687. Same — when rule does not apply. A provision in a city charter that the city shall not be liable for any damages arising out of any defect in a street unless one of the aldermen of the ward had notice thereof does not apply- where an obstruction is placed in the street by an employee of the city while engaged in repairing such street. Adams v. City of Oshkosh, 71 Wis., 49. §688. Primary liability— validity of provision respecting. A city charter provides that when any injury happens to persons or property in said city by reason of any defect or incumbrance of any street, sidewalk, etc., or other cause for which the city would otherwise be liable, if such defect, incum- brance or other cause is produced by the default of any per- son, such person shall be primarily liable, etc. Held, valid, but not applicable where the 'defective condition of the highway is caused by the negligence of persons making public improve- ments under contract with the city. Hincks v. City of Mil- waukee, 46 Wis., 559. §689. Primary, liability of third person — remedies to be exhausted. One section of a city charter provides the lot owner shall be primarily liable for all damages resulting from a defective walk, and that the city shall be liable only after all legal remedies shall be exhausted against such owner. Another section expressly imposes upon lot owners the absolute duty of keeping the walks in repair. Therefore, in an action against the city, where the plaintiff has established the primary liability of the lot owner, he must go further, and show that all legal remedies against the owner have been exhausted, or he cannot recover. Hiner v. City of Fond du Lac, 71 Wis., 74. §690. Same — sole cause of injury. Although a provision in a city charter provides that "when- ever any injury shall happen to persons or property in sucti city, by reason of any defect or incumbrance of any street or sidewalk, alley or public ground, or from any other cause for 172 CHARTER AND STATUTES. §691-692 which said city would be liable, and sudh defect, incumbrance or pther cause of such injury shall arise from or be produced by the wrong, default or negligence of any person or corpora- tion, such person or corporation so guilty of such wrong, I default or negligence' shall be primarily liable for all damages for such injury, and said city shall not be liable therefor until after all legal remedies shall have been exhausted to collect such damages from such person or corporation" — such pro- vision applies only wihen the wrong of such third person is the sole cause of the injury. Papworth v. City of Milwaukee, 64 Wis., 389. I §691. Same — delay in bringing action against person primarily liable. The charter of Milwaukee of 1874 provides that in case of an injury to persoil or property in that city caused by any defect or incumbrance 'in a street, if such defect or incumbrance arises from the wrong, default or negligence of any person other than the city, such person "shall be primarily liable for all damages for such injury; and the city shaill not be liable therefor until after all legal remedies shall have been exhausted to collect such damages'' from such other person. Held, that a com- plaint which shows that no action against the party primarily liable was commenced until five and a half years' after the injury, and states no facts to explain the delay, or to show that the city, if held liable, would not be injured by such delay, fails to state a cause of action against the city. McFarlane v. City of Milwaukee, 51 Wis., 691. §692. Same — same. A city charter provided that whenever any injury shall happen to persons or property in the defendant city by reason of any defect or incumbrance of any street for which the city would be liable, and such neglect or incumbrance was caused or procured by the wrong or neglect of any person, such per- son so guilty of the wrong or neglect shall be primarily liable for all damages for such injury, and the city shall not be liable therefor until after all legal remedies shall have been exhausted to collect such damages from such person. In an action against a city for injuries caused by contact with a pile of dirt in the street, placed there by the abutting owner, it was plain- tiff's duty to first exhaust all remedies against such owner 173 §693-696 MUNICIPAL CORPORATIONS. before proceeding against the city, even though the latter was negligent in not removing the obstruction. Raymond v. City of Sheboygan, 70 Wis., 318. §693. Same— keeping sidewalk in repair. Where by a city charter it is made the duty of the aldermen to keep the sidewalks in repair, and free and clear from all obstructions, at the expense of the lot abutting thereon, and the owner thereof, the owner or accupant is not thereby made primarily liable for an injury resulting from a failure to keep such walk in proper condition. Fife v. City of Oshkosh, 89 Wis., 540. §694. Same — construction of statutes as to — sidewalks. The provisions of a city charter that the common council may prescribe the material, manner and time for the construc- tion of sidewalks by, the owner or occupant of the adjoining lot or Idnd, and that if such owner or occupant neglects or refuses to so construct the same, then the city may do so at the expense of such lot or land pursuant to Subd. 13, Sec. 1, Ch. 160, Laws of 1891, does not make such owner or occupant primarily liable for an injury happening by reason of a defect in such sidewalk (Cooper v. Waterloo, 88 Wis., 433); neither does Sec. 2, Subd. 12, Ch. 160, Laws of 1891, making it the duty of such owner or occupant to keep all sidewalks around the / same free from snow, ice, rubbish, etc., which interfere with persons traveling thereon, and imposing a penalty for failure to perform such duty, nor Sec. 1339b, S. & B. Stats., providing that whenever any injury happens by reason of any defect in any street for which the city would be liable, the person by whose wrong, default or negligence such defect was caused shall be primarily liable, make such owner or occupant prima- rily liable for an injury happening by reason of such defects. Sommers v. City of Marshfield, 90 Wis., 59. §695. Same — same. Ch. 471, Laws of 1889 (Sees. 1339b, 1339c, S. & B. Ann. Stats.), does not make such abutting lot owner primarily liable. It merely authorizes an action against both the municipality and the wrong-doer. Fife v. City of Oshkosh, 89 Wis., 540. §696. Same — invalidity of provision granting special im- munity. A city charter in terms exempts the city from any liability 174 CHARTER AND STATUTES. §697-699 for injuries to person or property incurred at any place therein where work is being- done on the streets and sidewalks by con- tractors with the board of public works, in consequence of the condition of such streets or sidewalks arising from the doing of such work; but it declares the contractors liable for such injuries caused by their negligence. Held, invalid, as granting to such city a special immunity against a general rule of law to which other municipal corporations are subject. Hincks v. City of Milwaukee, 46 Wis., 559 ; Durkee v. City of Janesville, 28 Wis., 464. §697. liability of lot owner — slippery walk. •A city charter requires each lot owner to keep his side- walk "in a good and safe condition for use," and provides that for injuries occurring to any person, "by reason of a defective sidewalk," the lot-owner shall be liable. Held, that such liability attaches for injuries resulting from a smooth and slippery con- dition of the walk, rendering it unsafe, whether such condition result from the wearing of the surface by use, or from slippery substances placed thereon with the lot-owner's consent, or suffered to remain through his neglect. Morton v. Smith, 48 Wis., 265. §698. Same — charter construed — abutting owner to make repairs. A city charter gives to the city authority to con- trol, regulate, repair and clear streets and sidewalks; provides that the paving of streets, building and rebuilding of sidewalks, and expense of keeping sidewalks and gutters in repair shall be charged to the abutting lots, and the duty of 'keeping the walks adjacent in safe condition and good repair is expressly enjoined and imposed upon all owners and occupants of such lots and premises; that the street superintendent shall make frequent inspection, and shall cause repairs under $5.00 to be made, but if they cost more than that, he is to notify lot owner, and if not repaired within 24 hours, he shall make such repairs, and in either case, at the expense oi the abutting lot owner. Held, there is no liability on the part of the lot owner to the passer-by for injuries resulting from mere lack of repair of the adjacent sidewalk. Toutloff v. Green Bay, 91 Wis., 490. §699. Same — duty to repair walks does not create liabil- ity to traveler. Under a city charter, making it the duty of each lot owner 175 §700-703 MUNICIPAL CORPORATIONS. to construct the walk in front of his property in accordance with the determination of the city, and to keep the same in repair; authorizing the city to do so at lot owner's expense in case of his failure to do so, and making it a charge against the property; and providing that "whenever any injury shall happen by reason of any defect in any sidewalk from any cause for which, the city would be liable, and such defect shall arise from, or be produced by, the wrong, default or negligence of any person, other than sucb city, such person so guilty shall be primarily liable for all damages for such injury," — there is no liability on the part of the lot owner for injuries caused a traveler by mere failure to keep the walk in repair. Selleck V. Tallman, 93 Wis., 246. §700. Same — notice to, when condition precedent. Where a city charter required lot owner to keep and main- tain- the sidewalks in front of their premises in good condition, and gives to any person injured thereon the right to maintain an action against such owner, provided, that no action shall be maintained against him unless commenced within a year from -the time of the injury, nor unless notice shall have been given such owner within 30 days from the time such injury shall have happened, the giving of such notice is a condition prece- dent to the maintenance of the action. McKibben v. Amory, 89 Wis., 607. §701. Same — notice — reasonableness of. The right of action being given solely by statute, the legis- lature had the power to impose such conditions as it saw fit, and a judgment will not be reversed on the ground that a 30-day notice is unreasonably short. Id. §702. Same — ^uniformity in charters. Such charter provisions are not void because applying to abutting owners in that city alone, since at the time of their enactment there was no constitutional provision requiring uni- formity in city charters. Id. §703. Amendment of special charters by general law. Under Ch. 471, Laws of 1889, a city is not merely a guar- antor of the collectibility of damages from the principal wrong- doer, and it is not relieved from liability by a delay of two years in bringing suit against such principal. McFarlane v. 176 CHARTER AND STATUTES. §704-706 Milwaukee, 51 Wis., 695, distinguished; Raymond v. City of Sheboygan, 76 Wis., 335. §704. Same — ^injury from defective street. A pity charter provided that where a person has been injured by reason of a defect in a street caused by the negligence of another person, the city shall not be liable until all legal reme- dies against such other person have been exhausted. A sub- sequent geperal law provides that whenever any such injury "has happened or' shall happen," the negligent person shall be primarily liable, but the city may be sued in the same action, execution against it, however, to be stayed until an execution against the person primarily liable has been returned unsatis- fied. Held, the latter law applies to injuries happening in suph city, and that it is retroactive and applies as well to an injury for which suit was pending when it was enacted, and is not invalid for such reason since it affects the remedy merely. Id. §705. Defective sidewalk — duty of lot owner. ' In the middle of a wide street was an embankment several feet high, about one-fourth the width of the street, on which embankment was the traveled track. On one side was the walk resting with one edge thereon, and the other on posts, so that access to the walk was difficult from the adjacent public ground. A railing along the edge had been broken down at the place of the accident. Although the charter required the lot owners to construct and keep in repair their sidewalks, its provisions did not apply to a case like this. Cronin v. Village of Delavan, 50 Wis., 375. §706. Same — invalid ordinance. A city charter imposed upon the city the obligation to build sidewalks and keep them in repair, and required the lot owners to pay the cost thereof, but charged thehi with no other duty in the matter and gave them no control over the work. An ordinance of said city charging lot owners with the duty of keeping such walks in repair is unauthorized and invalid, and no mere acquiescence therein, no matter for what time, can operate to confer upon the common council the authority to impose such burden on^the lot owners. Woodward v. City of Boscobel, 84 Wis., 326. 12 177 §707-711 MUNICIPAL CORPORATIONS. §707. Defective liighway — common council cannot deter- mine sufficiency. Sec. 5, Ch. 337, of 1873 (the charter of the defendant city), does not, if it could, make the judgment of the common council conclusive of the sufficiency of the street. Prideaux v. City of Mineral Point, 43 Wis., 513. §708. Same — ^is question for jury. The question of a defective or safe highway is a question of fact for the jury. ' Berg v. City of Milwaukee, 83 Wis., 599. §709. Decision of board of public works, when final. The decision of the board of public works of a city, under a charter making them the final judges of the performance of a contract, is final unless impeached for fraud or dishonesty; and where the board refused to order a foundation put under a sewer, there is not only no liability on the part of the city because the contractor found the work more expensive than if a foundation had been ordered, but no such liability can be based pn a finding that the board obstinately and unreasonably refused to order or permit such foundation to be laid, and that by reaspn , thereof the board was guilty of gross negligence. Bumham v. City of Milwaukee, 100 Wis., 55. §710. Barriers — removal of — charter requirements. Under a charter requiring a city tO' insert in contracts for street improvements a stipulation that the contractor "shall put up and maintain such barriers and lights as will effectually prevent the happening of any accident," where a sufficient barrier has in fact been put up across the dangerous street, but removed by some unknown person before tlie accident, the liability of the city is still limited as defined in the" fore- going proposition. Where the special findings show that the accident happened in the night, five hours after the barriers were erected, and that in the interval such barriers had been removed, but do not show when or by whom the removal was made, nor any other facts bearing upon the question of implied or presumptive notice, it cannot be held as matter of law that there was such notice. Klatt /. City of Milwaukee, 53 Wis., 196 b. Of notice and requirements thereof. §711. Sufficiency of; generally. The notice of injury provided for by Sec. 1339 R. S. is 178 NOTICE — REQUIREMENTS THEREOF. §712-715 sufficient if it directs the authorities clearly and unmistakably to the exact spot or place of the accident, although a street men- tioned in said notice be improperly named. Hein v. Village of Fairchild, 87 Wis., 258. §712, Same." Where a notice conveys the necessary information to the proper persons, it is sufficient, although it might have been stated with greater particularity. Laird v. Town of Otsego, 90 Wis., 25. §712a. Same. The notice of injuries caused by defective highway required by Sec. 1339 R. S. stating that insufficiency of the highway as being a pile of old boards obstructing the tiraveled part thereof, one mile east of the village of O., and a little east of the farm house of one B., where there was an embankment at the point named, was considered sufficient within the foregoing rule. Id. Citing La Crosse v. Melrose, 22 Wis., 463; Wall v. High- land, 72 Wis., 435; Hein v. Village of Fairchild, 87 Wis., 258; Fopper V. Town of Wheatland, 59 Wis., 623; Salladay v. Town of Dodgeville, 85 Wis., 318. §713. Same. Where, in an action against a town for injuries caused by a defective highway, there was no controversy as to the place where the alleged defect was located, nor that it was located at the place alleged in the complaint and notice, and there was , nothing to indicate that the defendant was misled by the loca- tion of the defect, as alleged in the complaint and stated in the notice served; nor that the defendant was surprised by the evidence given as to the place of the injury, — the notice is suffi- cient. Doan V. Town of Willow Springs, 101 Wis., 112. §714. Same. The notice of injuries caused by a defective highway which is required by Sec. 1339 R. S., should point as directly and plainly to the place of the injury as is reasonably practicable, having regard to its character and , surroundings. This rule is founded in good sense, and may ,easily be complied with. Weber v. Town of Greenfield, 74 Wis., 234. §715. Description of place— gravel in highway. The notice of injury caused by a defective highway described 179 §716-719 MUNICIPAL CORPORATIONS. the place as being at a point in the highway at about where a certain section line crossed the 'highway, and where the authori- ties had the day previous placed several loads of gravel left piled up in the center of the highway. The evidence showed the gravel had been placed along the highway at various places, about 20 rods each way from the section line mentioned in the notice, and the accident occurred about 394 feet from the crossing of the section line with the highway. Held, notice insufficient. Weber v. Town of Greenfield, 74 Wis., 234. §716. Same — bridge for culvert. Although the notice of injury from a defective highway stated the place of the accident as a bridge, when the evidence showed it was a advert, the variance could. not mislead any one, the culvert being at the point designated in the notice, and the notice being sufficiently specific to enable the place of injury to be found without serious difficulty. Wall v. Town of Highland, 72 Wis., 435. §717. Same — object of notice. The only object of the notice required by Sec. 1339 R. S., is to notify the proper authorities of the place of the injury with reasonable certainty and so they CEin readily find it with reasonable diligence, and the notice in question was amply' sufficient, and sufficiently apprised the officers of the town of the place of the injury. Fopper v. Town of Wheatland, 59 Wis., 633. §718. Same — variance. Where the notice of injury from a defective sidewalk required by statute described such place as being 25 feet north of a certain store, and the complaint described it as aljout 10 feet north of the northwest corner of such store, it is not a fatal variance. Barrett v. Village of Hammond, 87 Wis., 654. §719. Same — same. In an action against a city for personal injuries caused by a defective walk, the complaint stated the place as being on the east side of.G. street, 150 feet south of the north fine of O. street. The first notice served on the city stated the place near the southeast corner of O. and G. streets, and a second notice, served the day following, located it 150 feet north of F. street, while the evidence located the defect 113 to 160 feet north of 180 NOTICE REQUIREMENTS THEREOF. §720-722 F. Street. There was also a material variance in the statements as to what the defect was. Held, neither the place, nor the nature of the insufficiency, were sufficiently described. Dolan V. City of Milwaukee, 89 Wis., 497. NOTE— F. and O. streets were parallel and G. street ran at right angles to and across them. §720. Same — defective crosswalk. In an action against a city for injuries caused by a defective walk, the notice required by Section 1339 describes the loca- tion of the defect as on the south side of S. street at the inter- section of S. street and F. street, and the insufficiency com- plained of was that the crosswalk on the south side of S. street across F. street was torn up, and the surface of the ground where pedestrians were compelled to walk was left rough and uneven; that the ground where said walk had been was cov- ered with loose stones, which were permitted to lie where pedestrians had to walk, and were lower than the sidewalk on the south side of S. street, where the said crosswalk should join said sidewalk, and boards of said sidewalk stuck out and projected above the level of said F. street. The notice, however, did not advise the authorities as to which side of F. street the insufficiently existed, and as the real defect upon which a recovery was based was that there was a step down from the top of the gutter to the pavement on the westerly side of F. street, at its intersection with S. street, and the absence of an apron, the notice was clearly insufficient. Benson v. City of Madison, 101 Wis., 313. §721. Same — same — description of defect. In an action against a municipal corporation for injuries received by means of a defective sidewalk, the notice required by Section 1339 is a condition precedent to the riglit of the plaintifif to maintain such action. To be legally sufficient, the notice must contain a sufficiently definite description of the place of the accident to enable the interested parties to identify it from the notice itself. It should also describe the alleged insufficiency with such clearness as to enaible the authorities to ascertain therefrom the grounds upon which the claim was based. Benson v. City of Madison, 101 Wis., 312. §722. Same — erroneous location. In an action against a city for injuries from a defective 181 §723-726 MUNICIPAL CORPORATIONS. Street, the notice located the place on W. street, between blocks 3 and 25 of R. addition to city. There is no block 3 in such addition. The addition contains five blocks, which abut on W. street, and the notice contains nothing from which it can be determined which of the five blocks was intended by the errone- ous designation of block 3. Held, the notice did not state the place where the accident occurred with reasonable certainty. It is quite immaterial that some of the city officers were at the place of the injury immediately after the accident, and knew precisely how it occurred. Such knowledge will not dispense with giving the notice as required by statute. Sowle v. City of Tomah, 81 Wis., 349. §723. Description of defect — defective sidewalk. A notice of the village authorities to the efifect that the plaintiff was injured "while walking on the sidewalk on M. street, opposite the Moravian church, in company with Prof. T., owing to a defective sidewalk," is insufficient, under Sec. 1339 R. S., since it contains no description of the defect, which is the very thing the village authorities had a right to be informed of. Van Loan v. Village of Lake Mills, 88 Wis., 430. §724. Same — ^unsound bridge. The notice of injury required by Sec. 1339 R. S. described the defect as "an unsound, defective and dan'gerous condition." It was proved to be rotten, both plank and stringers. Held, sufficient.^ The term "unsound" describes the condition of being rotten, when applied to a sidewalk, and "unsound and dangerous" may fairly mean "so rotten as to be dangerous." Van Frac'hen v. City of Ft. Howard, 88 Wis., 570. §725. Description of place and defect. A notice stating that plaintiff "was injured by being thrown from a wagon on the main highway on Section 2, Town 20 north, of Range 2 west, at a point where said road turns and runs due north, and where said road goes over a hill or bluff; that said injury was caused by a hole being washed in the road, so that in descending the hill going south, the wagon' plunged off from a stone table into said washout," — is Sufficient to describe the place of the accident and the defect in the high- way complained of. Wieting v. Town of Millston, 77 Wis., 523. §726. Same. The notice of injury described the place as on a road leading 1K2 NOTICE — REQUIREMENTS THEREOF. §727-730 from a certain cit}f past the F. school-house, and about 100 yards east of the residence of Mrs. F., and somewhere near the section line of Sees. 20 and 29, and the insufficiency and want of repair as the general bad condition of the highway and some loose stones lying in the traveled track, is held sufficient, although the evidence showed the injury was caused by a stone partly imbedded in the roadway. Salladay v. Town of Dodgeville, 85 Wis., 3-18. §727. Same — allegation and proof of general insufficiency. Where the notice required to be given by Sec. 1339 R. S. describes accurately the place wliere the accident occurred, and describes generally the insufficiency or want of repair which caused the injury, it is proper to permit plaintiff to allege and prove the actual condition of the wailk at the time and place of the injury. Laue v. City of Madison, 86 Wis., 453. §728. Notice to city of insufficiency. An averment that the hatchway had existed for three years, during all of which time the owner had been accustomed to open the door frequently, etc., held, a sufficient averment that the city had notice of the insufficiency, if it be one. Barstow V. City of Berlin, 34 Wis., 35?. §729. Constructive notice — defect existing two months. Where the dangerous condition of a foot-bridge over a ravine was caused by the snow and ice accumulating until a high ridge had formed in the center, and such condition had existed for two months before the accident complained of, the court submitted the question as to whether such condition had existed for such a length of time as reasonably to charge the city authorities with constructive notice thereof, and by find- ing for the plaintiflf the jury must have ansewerd the question in the affirmative. McDonald v. City of Ashland, 78 Wis., 251. §730. Same — defect existing three months. In an action for injuries to plaintifl's person caused by her stepping through a hole in a sidewalk, evidence that the walk was on one of the principal thoroughfares of the defendant city, and that the hole had existed there several months, warranted the jury in finding the city chargeable with notice. Hall v. City of Fond du Lac, 42 Wis., 374. 183 §73 I '735 MUNICIPAL CORPORATIONS. §731. Same — defect existing several months. Where the defect which was the cause of the accidert on Jan. 31, had existed since the previous summer, it was not error for the court to instruct the jury that that was sulilicient time in which the city should have learned of and repaired the defect. West v. City of Eau Claire, 89 Wfs., 31. §732. Same — same. In an action for injuries caused by a defective walk, the evi- dence showed there were two holes in the sidewalk, eighteen inches wide and three feet long, one on each side of steps lead- ing down to the cellar of the adjacent building. They had been there all summer and only partially covered with loose boards. The sidewalk was poor and had been talked about all summer. The holes were sometimes left open when things were being put in the cellar. Held, the defect had remained so long a time that the aldermen of the ward must have known of it. Smdley V. City of Appleton, 75 Wis., 18. §738. Same — defect known to street commissioners. Where the street commissioners of a city well knew that the whole of a certain sidewalk was old, rotten and unsafe, the fact that the particular planks which caused the injury were not known to be loose, will not protect the city from liability; nor is such a defect properly a latent one. Goodnough v. Oshkosh, 24 Wis., 594, distinguished; City of Ripon v. Bittel, 30 Wis., 614. §734. Same — notice of former defective conditions. A sidewalk in a city being out of repair, the occupant of the lot was required by the street commissioner to repair it, and did so, but left it in a defective condition, the defect, however, not being apparent. In an action for personal injuries caused by such defect, it is held that ^s the city had . notice of the former defective condition, its obligation to repair continued until the walk was put in proper condition, and it must be con- clusively presumed that the city knew of the defect left therein which caused the injury. Woodward v. City of Boscobel, 84 Wis., 226. §735. Same. In an action against a city for injuries resulting from defec- tive condition of a sidewalk, plaintiff must show that the city 184 NOTICE REQUIREMENTS THEREOF. §736-740 authorities had actual notice of the defect, or that it was of such a nature, and had existed for so long a time, that knowl- edge on their part must be presumed. Goodnough v. City of Oshkosh, 24 Wis., 549. §736. Same — defect existing one day. It is for the jury to determine, under all the circumstances of the case, how long a defect in a sidewalk must have existed in order to charge the city with constructive notice; and there was no error in refusing to instruct them that if the defect here shown had existed but one day prior to the accident, the city was not liable, unless it had actual notice. Sheel v. City of Appleton, 48 Wis., 125. §737. Same — general principle as to — question for jury. There was no error in instructing the jury that if the defect in a sidewalk which caused the injuries complained of, had ex- isted for such a length of time that by the exercise of reason- able care and diligence the city authorities would , have dis- covered it, knowledige on their part might.be presumed; there being evidence which rendered such instruction pertinent. Colby v. City of Beaver Dam, 34 Wis., 285. §738. By whom notice signed. Ch. 86, Laws .of 1875, did not require the notice given to a town of an injury caused by a defective highway, to be, signed by any person; and where such a notice under that act was served by the injured party in person, the fact that the signa- ture of his attorneys thereto did not describe them as such attorneys, is immaterial. Teegarden v. Town of Caledonia, 50 Wis., 292. §739. Same — :married woman. In an action for personal injuries from defective high- way brought by a married woman, where the notice of such in- jury was signed by her, it was immaterial that her husband also signed it. McDonald y. City of Ashland, 78 Wis., 251. §740. By whom g^ven in case of death. In an action for the death of a minor child through a defect in the highway, the notice, pursuant to Sec. 1339 R. S., was given by the father alone, the mother not joining. Even if such notice is necessary in case of death caused by such defect, which is not determined, yet where the recovery is for the joint 185 §741-745 MUNICIPAL CORPORATIONS. benefit of the father and mother of the deceased, notice, either by the administrator or one of the beneficiaries, is sufficient to charge the town, if otherwise Hable, for the whole damages. Parish v. Town of Eden, 62 Wis., 272. NOTE — MoKeigue v. City of Janesville, 68 Wis., 50, holds no notice is necessary when the Injured party dies before expiration of the time for giving notice. §741. How given. Where the proper officer of a town gets the notice required by Sec. 1339 R. S., within the statutory time, and recognizes it as coming to him in his official capacity by filing it with the town clerk, proof of such service is sufficient. Wieting v. Town of Millston, 77 Wis., 523. §742. Proper notice. An admission on the trial that proper notice was given, is, in effect, an admission that sufficient notice was given. Hein v. Village pf Fairchild, 87 Wis., 2.58. §743. Validity of statute regarding. Ch. 236, Laws of 1897, amending Sec. 1339 R. S., and re- ducing the time for sendng notice of injuries, in the case of cities, from 90 to 15 days, is a valid exercise of legislative power. Daniels v. City of Racine, 98 Wis., 649. §744. Service of notice. Plaintiff testified that he served a copy of one notice on the town clerk, Sept. 28, and a copy of another notice on the chair- man of the town board. The chairman testified at the trial that he went to the place of the accident three weeks after the trial, but was silent as to the time when the notice was served on him. In the absence of other evidence, it was inferred that both no- tices were served the same day. Goldworthy v. Town of Lin-' den, 75 Wis., 24. §745. Defective drawbridge — death caused by absence of barriers — when notice unnecessary. It is the duty of a city, in constructing a draw-bridge to be used by it as a highway, to provide suitable barriers and lights so as to render it safe for travelers at all time; and if by reason of neglect so to do, a person falls into the river, without negli- gence on his part, and is drowned, the city will be liable. The rule which requires notice to the corporation of defects in a highway or bridge, has no application in a case like this. NOTICE — REQUIREMENTS THEREOF. §746-751 the defect being a lack of completion of the bridge for the use for which it was intended, which was obvious. Stephani v. City of Manitowoc, 89 Wis., 467. §746. When notice unnecessary — death of person injured — action by administrator under See. 4255 R. S. Where a person receives injuries from a defective highway, and death occurs within ninety days after the injury, the fact that the deceased had not given that notice required by the statute does not defeat the action brought by the administrator under Sec. 4355 R. S., and it is unnecessary in any case for the administrator to give another notice required by Sec. 1339 R. S. McKeigue v. City of Janesville, 68 Wis., 50. §747. When unnecessary — obstructions. In an action against a village and individuals for damages' caused by an obstruction placed by the latter, the want of no- tice of the defect, required by Sec. 1339 R. S., is not available as a defense for the latter. Caimcross v. Vilkge of Pewaukee, 86 Wis., 181. Hughes v. City of Fond du Lac, 73 Wis., 380. §748. Mortar-box in highway — notice to overseer — Sun- day. Where a mortar-box was deposited in a highway on Satur- day afternoon, the fact that the overseer of highways had notice thereof the same evening is sufficient notice to the town of the defect which caused an injury to plaintiff at 9 p. m. the day following. The intervention of Sunday did not suspend the duty of caring for the personal safety of travelers on the high- way which was endangered by its non-performance. Bloor v. Town of Delafield, 69 Wis., 273. §749. Notice to overseer. Notice to overseer of highways of a defect in a highway in his district is notice to the town. Goldsworthy v. Town of Linden, 75 Wis., 24. §750. Notice to city engineer. Notice to city engineer and two members of the board of public works, they having charge of the construction of the sewer, of the existence of the obstruction complained of, is notice to the city. Harper v. City of Milwaukee, 30 Wis., 365. §751, Notice to member of town board. Notice to the chairman of the town board of supervisors (or, 187 8752-755 MUNICIPAL CORPORATIONS. it seems, to any member of that board), of a defect in the bridge in such town, is notice to the town; and if thereafter no proper precautions are taken in due time to guard against accidents by reason of such defect, the town is chargeable with negligence. Jaquish v. Town of Ithaca, 36 Wis., 108. §752. Obstruction remaining unnecessarily — boat in high- way. Plaintiff was injured by his horse becoming frightened at a boat placed in the highway preparatory to launching. The owners had the right to place the boat where they did for the purpose of launching it, and it did not become a defect until it unnecessarily impeded travel on the street, and the village ofiS- cers would not be required to interfere until, to their knowledge, the delay of the owners to launch the boat had become unrea- sonable, and the village wou"ld not even then become liable if it caused the boat to be launched with reasonable care, prompt- ness and expedition, after knowledge of the officers that it had become a nuisance. Cairncross v. Village of Pewaukee, 86' Wis., 181. §753. Duty to thoroughly inspect bridge, after notice that some repairs are necessary. Where the town authorities have actual notice of the defec- tive condition of a bridge, and had caused repairs to be made upon it, they were chargeable with notice that the timber in the bridge was decaying, and should have had the structure thor- oughly inspected to ascertain its true condition. Spaulding v. Town of Sherman, 75 Wis., 77. §754. Duty of overseer— impassable highway. Under Ch. 343, Laws of 1864 (Taylor's Stats. 487, sec. 45), it is the duty of each overseer of highways, whereever any por- tion of the highways in his district is rendered impassable by snow drifts, "to call out, upon one day's notice, the taxpayers of said district, and immediately put said part or parts of said highways in passable order." McCabe v. Town of Hammond 34 Wis., 590. §755. Same— notice to, of effects of storm. After a heavy fall of snow, accompanied by a high wind, in any district, the overseer therein is chargeable with notice of the probable efifects of such storm, and it is his duty to ascer- 188 NOTICE REQUIREMENTS THEREOF. §756-760 tain where the highways are obstructed by snow, and take steps to remove the drifts. Id. §756. Same — actual notice to. Where the town overseer of highways has actual notice of the defective condition of a highway, it is his duty to see that it is restored to a proper condition, and nothing short of such actual restoration will relieve the town from liability to trav- elers. Parish v. Town of Eden, 63 Wis., 373. §757. Statute requiring notice within ninety days applica- ble to accident happening fifty days before it took effect. Section 1339 R. S., providing that no action for an injury caused by a defective sidewalk shall be maintained unless* notice of the accident was given to the city within 90 days, is applicable to an action commenced after said statute took effect, although the accident occurred 50 days prior to that time. Reed v. City of Madison, 83 Wis., 171. §758. Same rule as to twelve days. In this case, Section 1339 R. S. took effect ten or twelve days after the injury, and the notice was not given, and the court held the action would not He. The injury occurred Oct. 38, the statute took effect Nov. 1, but had been published June 7. The action was commenced Dec. 38. Plum' v. City of Fond du Lac, 51 Wis., 393. §759. Clerical error in notice. A notice of injury to the purport "that the breaking of the bridge was due to its insufhciency, no rotten timbers being used in its construction," is held not misleading, and manifestly clerical error. Althouse v. Town of Jamestown, 91 Wis., 46. §760. Action commenced fourteen years after injury to minor — ^when complaint will serve as notice. An action was commenced against a city by the plaintiff after becoming of age, for an accident which occurred to her some 14 years before. Something like a month or a little over after the accident, the father of the child commenced an action against the city and served the complaint therein, Stating all the facts required by Section 1339 R. S., to be stated in a notice of injury. Heldj a sufficient notice for the purposes of a subse- quent action by the child. Reed v. City of Madison, 83 Wis., 171. 189 §761-765 MUNICIPAL CORPORATIONS. §761. Notice of discontinuance of highway — ^barriers. To relieve itself from liability, when the public travel, or some part of it, has diverged from the prepared trdck, and has formed another track equally accessible to travelers, and apparently as much traveled as the other, some reasonable notice to the public traveling there that the use of the side track is unauthorized must be given. This may be done by placing obstructions therein, or by putting up notices, or in any other manner which will sufficiently notify travelers that the town desires them to use the graded track alone. Cartright v. Town of Belmont, 58 Wis., 370. §762. Same — same. Where a highway containing a plain and well-beaten track is discontinued, it is the duty of the town to give such notice as will serve to prevent the use of the discontinued road by night as well as by day. In the absence of anything to the contrary, travelers have a right to assume that a highway that appears to be open and used for travel has not been discontinued. Bills V. Town of Kaukauna, 94 Wis., 310. §763. Notice of nuisance unnecessary. It would seem that notice by the injured party to the author of a nuisance, as to the location and nature of the same and the damages sustained thereby, was not a condition precedent to the maintenance of an action therefor at common law, nor under Sec. 1339 or Sec. 3180 R. S. Hughes v. City of Fond du Lac, 73 Wis., 380; Cairncross v. Village of Pewaukee, 8G Wis., 181; Steltz v. City of Wausau, 88 Wis., 618. §764. When notice is competent evidence — ^is not a pro- ceeding. The notice of injury required by Sec. 1339 R. S. is not a proceeding in an action, but an essential preliminary to the commencement of an action for personal injuries in certain cases, and is competent evidence in any action in which it is necessary to prove the service thereof. McDonald v. City of Ashland, 78 Wis., 251. §765. Defective bridge — notice of defect — question for jury. Evidence that the bridge complained of had been built for some time; that it was in bad condition about five years prior 190 DEFECTIVE HIGHWAYS. §766-769 to the accident; that its timbers were old and rotten; that its rotten condition caused the accident, were circumstances suffi- cient to take the case to the jury on the question of notice to the town. Grimm v. Town of Wasihburn, 100 Wis., 229. c. Defective highways. §766. liability of towns for injuries caused by. A town is liable for an injury caused by a highway being out of repair, notwithstanding "slight negligence" on the part of the traveler contributing to the injury; otherwise, if any want of "ordinary care" on his part contributed to the injury. Dreher V. Town of Fitchburg, Wis., 22 Wis., 675. §767. Same — objects in highway frightening horses. Objects within the limits of a highway, naturally caluculated to frighten horses of ordinary gentleness, may constitute such defects in the way as to render the town liable, even though so far removed from the traveled path as to avoid all danger of collision. Foshay v. Town of Glen Haven, 25 Wis., 288. §768. When estopped to deny a highway — expending money on. If a town expends the means provided by law to make and improve highways upon a road, it thus proclaims to the world that such road is one of its public higtiways, and is thereby estopped from denying it to be sudh in an action for the recovery of damages through the neglect of its officers or agents. Codner v. Town of Bradford, 3 Finn., 259. §769. Open drawbridge in street — contributory negligence. In an action against a city for damages for the death of a woman by reason of her walking over an open drawbridge, and falling into the river, where she was drowned, the evidence showed the bridge bell was rung before the bridge was opened, and could be 'heard several blocks away; that a steam barge was approaching- the bridge, and made a loud noise with a slow exhaust; that she was familiar with the bridge and its approaches; that if she had looked, she would have seen the bridge was open. A verdict that deceased was not guilty of any want of ordinary care which contributed to her death, is uinisupported by the evidence, and cannot stand. Stephani v. City of Manitowoc, 101 Wis., 59. 191 §770-773 MUNICIPAL CORPORATIONS. §770. Snowdrift in highway. In an action for injuries received by plaintiff in consequence of the highway being obstructed by a snowdrift, it appeared that the drift formed on Tuesday, that the wind continued to drift the snow on Wednesday, that it showed again on Thursday morning, and the accident occurred on Friday afternoon. Held, town not charageable with negligence, and not liable in the action unless, in the exercise of reasonable care and diligence, by the overseer in giving the statutory notice to taxpayers, the drift could have been removed before plaintiff was injured, and this was a question for the jury. McCabe v. Town of Ham- mond, 34 Wis., 590. §771. Ordinary care — instructions. It was, therefore, error, to instruct the jury that the town would not "be relieved from its liability by showing ordinary care." Id. §772. Temporary track through snow drift. In an action for personal injuries sustained by plaintiff while driving back upon the turnpike from a temporary track which had been opened through snowdrifts at the side of the turn- pike, the refusal to instruct the jury that if the town officers deemed it impracticable to keep the snow out of the traveled track they had a right to open a track on the side thereof was not error, where the general charge was to the effect that if the road at the point in question was in a reasonably safe condition it was hot defective. Vass v. Town of Waukesha, 90 Wis., 337. §773. Method of construction of — evidence. In an action for injuries alleged to have been caused by a defective highway, where the right of the town to maintain the .highway on the line of its actual location was not denied by the plaintiff, there was no error in rejecting evidence offered by the town to show that, owing to the topographical character of the region, it was customary and necessary to construct the hig'hways for the most part (as the one in question was con- structed) on the hill sides; especially as it was admitted by the plaintiff that the country was "bluffy, rough and mountainous," and the questions asked as to the necessary and usual mode of constructing highways in that region tended to raise irrelevant issues. Kenworthy v. Town of Ironton, 41 Wis., 647. 192 DEFECTIVE SIDEWALKS. ^774-'77^ §774. How village estopped to deny highway. After allowing a footway along a village street to be used as a puBlic way for many years, and after the proper village officers have taken charge of it and expended money and labor upon it, the village cannot avoid liability for injuries caused by the defective condition of such footway on the ground that it was never formally adopted by recorded resolutions or vote. Cronin v. Village of Delavan, 50 Wis., 375. §775. Liability for defective highways outside of state. A city chartered under the laws of Wisconsin has no right to accept a privilege or franchise granted to it by the legislature of an adjoining state to construct a highway over territory therein, subject to liability for all damages caused by such improper construction or want of repair of such highway. Such acts being ultra vires, the municipality cannot be held liable therefor, or for failure to perform such acts, to the injury of others. Becker v. City of La Crosse, 99 Wis., 414. §776. Obstruction in street — removal of warning. If a person, whose duty it is to so guard an obstruction lawfully placed in a public street as to prevent danger to per- sons using such street for travel in the exercise of ordinary care, performs his duty in that regard by the use of a proper light or otherwise, and the guard, after being properly placed, is removed without fault on such person's part, and a traveler is thereby injured before sufficient time has elapsed for such person, in the exercise of ordinary care, to discover such removal and to remedy it, then he is not liable. It is damuum absque injuria. Raymond v. Keseberg, 91 Wis., 191. §777. Duty of city to keep street in repair. The obligation of a city to keep its streets 'in repair is not affected by the fact that it may order the repair to be made by the adjoining lot owner, and on his failure to repair may cause it to be done at the expense of the lot. Cuthbert v. City of -Appleton, 23 Wis., 643. d. Defective sidewalks. §778. Liability for, is statutory. The liability of a city for injuries caused by defective side- -^ walks is, in this state, exclusively statutory. Reed v. City of Madison, 83 Wis., 171. 13 193 §779-784 MUNICIPAL CORPORATIONS. §779. Same. The liability of a city for injuries to the person resulting irom a defective sidewalk which the city was bound to repair, is settled and no longer open for discussion. Colby v. City of Beaver Dam, 34 Wis., 285. §780. Same— walk built by lot owner. The city having allowed a walk to be built in a defective manner, and to remain in that condition, cannot escape liability by the mere fact that it was built by the lot owner. Hill v. City of Fond du Lac, 56 Wis., 242. §781. Liability of wrong-doer. In general, the doer of a wrong act is not liable for damage whiclris not the natural and ordinary consequence of such an act, unless it be shown that he knew, or had reasonable means of knowing, that such- a state of things existed as rendered the actual damage' probable. Stewart v. City of Ripon, 38 Wis., 584. §782. Ice and snow — accumulation of — hole in walk. An accumulation of snow and ice upon, or a hole in, a side- walk may constitute a defect for which the city may be liable. West V. City of Eau Claire, 89 Wis., 31. §783. Same — ^mere slipperiness. Mere slipperiness of a sidewalk, resulting wholly from nat- ural causes, does not constitute a defect. Grossenbach v. City of Milwaukee, 65 Wis., 31. §784. Same — ^ice caused by melting snow on roof — ^liability. Plaintiflf was injured by falling on a sidewalk, upon which ice had formed next to the adjacent building, caused by the melting of ice and snow on the roofs and in the gutters of that building during the day, which ran towards the center of the walk, sloping towards the gutter, leaving most of the walk towards the outside entirely free from ice. There was nothing to show an improper construction of the sidewalk, nor had the ice become piled up so as to make it oval or uneven, and there was nothing in the construction of the building or its condition upon which negligence of the city or the owner could be pred- icated. Held, no liability of city. Hausman v. City of Madi- son, 85 Wis., 187. 194 DEFECTIVE SIDEWALKS. §785-789 §785. Same — packed hard and even. An accumulation of ice and snow upon a sidewalk in rough, uneven, high ridges, extending clear across the walk in such form as to constitute an obstruction, and in existence for several weeks, constitutes a defect. But where there is a coat- ing of about two inches of snow, packed hard evenly over the sidewalk by travel, and the walk had been in that condition for some time; that the weather had turned warm, causing the snow to become soft, wet and sloppy, and then suddenly turned cold, causing ice to form with such footprints therein as would naturally be made by travel under such conditions, there is no liability on the part of the city for an injury received on such walk. Hyer v. City of JanesviUe, 101 Wis., 371. §786. Same — walk improperly built — increasing danger on. While the mere slippery condition of a sidewalk, caused by the action of the elements, is not a defect rendering the city liable under the statute, yet if the walk be so' unskillfuUy or improperly built as unnecessarily to increase the danger to per- sons walking thereon while it is covered with ice or snow, this will render it defective or insufficient within the meaning of the statute. Perkins v. City of Fond du Lac, M Wis., 435. §787. Same — same — same. When a sidewalk is so constructed as to be, with the ice and snow that would ordinarily accumulate upon it in winter, unsafe to travel thereon with ordinary care,' then it is defective. Hill V. Fond du Lac, 56 Wis., 248; Stilling v. Thorp, 54 Wis., 537; Grossenbach v. City of Milwaukee, 65 Wis., 31. §788. Paint on walk — knowledge of lot owner. As to a slippery and unsafe condition of defendant's side- walk, resulting from paint placed thereon by other persons, there was no error in submitting to the jury the question whether defendants knew of it, or, in view of the nature of the defect and the length of its continuance, were chargeable with notice. Morton v. Smith, 48 Wis., 265. §789. Slippery condition with previous defect. Although for a defect of a sidewalk which is mere iciness or slipperiness, produced by natural causes, the city is not responsible, yet when such condition concurs with a previous 195 §790-792 MUNICIPAL CORPORATIONS. defect, for which the city is responsible, the city is liable in damage. And where such previous condition is an accumula- tion of ice and snow which had remained for a long time, and by a change of the weather had become icy and slippery, the city is liable. Salzer v. City of Milwaukee, 97 Wis., 471. §790. Same — question for jury. In an action against a city for injuries arising out of an alleged defective walk, the defect alleged was that there was a steep decline in said walk, which had become slippery. The question was not whether the mere sudden declivity in the walk, in the absence of any storm or controversy, would have weather, in the absence of the walk in question, and with a walk differently constructed, would have caused danger, but whether that walk so constructed with such ice and snow as would ordinarily accumulate upon it during such severe storms and freezing weather as ordinarily occurred at that season of the year, at the place of the injury, would be unsafe for travelers upon it. If in that condition and under such circumstances it been dangerous, nor whether tue mere storm and freezing was unsafe, then it was defective, and it was clearly the province of the jury to determine that question. Hill v. City of Fond du Lac, 56 Wis., 343. §791. Ice and snow — ^inclined apron. In an action against a municipal corporation, for damages caused by an alleged' defective sidewalk, it appeared that the defect . complained of was a descending apron, about 6 feet long, having a descent of about 3 inches to the foot, along which cleats were fastened about every 14 inches, and which were covered by ice and snow. During the night previous, this apron was made slippery by reason of mist, followed by light and noticed its condition, about 8 a. m. An hour later she snow. Plaintiff had passed over the apron without difficulty, returned, and slipped and fell. No ashes were on the apron at the time. A verdict was properly directed for the defendant. Coop'er V. Village of Waterloo, 88 Wis., 433. §792. Same— hole in walk. There being evidence, tending to prove that snow and ice had accumulated in a ridge on a sidewalk, which was uneven and slippery; that beside and near the ridge there was a hole in the plank of the sidewalk; that plaintiff slipped on said ridge, 196 DEFECTIVE SIDEWALKS. §793-798 her foot went through the hole,' and was held there until she fell in suoh a way as to break her ankle, it would be a legitimate inference, and not "mere conjecture," for the jury to find that the foot went into the hole and was held there, and that that was the manner of the accident. West v. City of Eau Claire, 89 Wis., 31. §793. — ^Hole in walk existing a year — negligence. Where, in an action against' a city for injuries received through a defective walk on a much traveled street, it appeared that a hole therein large enough to admit a man's foot, had existed more than a year, the defend? nt was guilty 6f negli- gence in not repairing said walk, and keeping it in safe and proper condition. Crites v. City of New Richmond, 98 Wis., 55. §794. Large hole in — defect as matter of law. A large hole or excavation in a sidewalk, several feei deep, and unguarded, is a defect in the walk as a matter of law. McGpath V. Village of Bloomer, 73 Wis., 29. §795. Open hatchway — duty of city. Where a city allows a hatchway to be inserted in a sidewalk, leading to a cellar beneath, it is its duty to see that -the same is so located and constructed as not to render the walk unneces- sarily unsafe. McClure v. City of Spa,rta, 84 Wis., 269. §796. Same — question for jury, A hatchway in a sidewalk, leading to a cellar beneath, hav- , ing been located with sole reference to the convenience of the owner of the premises, nearly in the center of the walk and directly in the line of most of the travel, the city cannot com- plain because, in an action against it for falling through the hatchway, the question whether the sidewalk was defective because of the improper location of the hatchway, was left to the jury. Id. §797. Negligence of owner of premises. In such an action, the fact that the owner of the premises had opened the hatchway, and was negligent in not properly guarding the opening at the time plaintiff was injured, is no defense. Id. §798. Side stairways leading to basements. Stairways on the street sides of buildings, leading down- 197 §799"803 MUNICIPAL CORPORATIONS. wards to bas.ements or upwards to the front entrances of such buildings, and not encroaching upon the sidewalks, are lawful; but the municipality is bound to provide proper safeguards to prevent accidents from the proximity of such stairways to the sidewalk, tc^-persons traveling thereon with ordinary care. Fitz- gerald V. City of Berlin, 51 Wis., 81. §799. Same — barrier — question for jury. In this case, where a* descending stairway was parallel to the sidewalk, and there was a sufficient barrier on the side thereof, the defendant city was not bound to cause a barrier or gate to be maintained at the entrance ; and it was error to submit to the jury the question Whether it was negligence in failing to do so. Id. §800. Opening in sidewalk — right of abutter to construct. A lot owner, being the owner in fee to the middle of the street, has the right to construct openings in a sidewalk for beneficial uses, if made and secured in a proper manner and so as not to interfere with or endanger public travel. Papworth v City of Milwaukee, 64 Wis., 389. §801. Same — same — ^liability for. But such person would be liable for any damage resulting to a person lawfully walking over the same, from want of proper repairs. Id. §802. Injury from hydrant on sidewalk. If city officers unnecessarily sufifer a dangerous structure or object to remain upon its streets, after notice of its existence and time to remove it, the city is liable for an injury caused thereby to one in the exercise of proper care. So held where the plaintiff was injured in the night time by falling over a hydrant maintained by a private company on the main street, and about two feet from the curb, on a twelve foot walk. King V. City of Oshkosh, 75 Wis., 517. §803. Coal hole cover — no duty to examine. Where a coal hole cover is apparently of proper construc- tion and properly fitted, it is not the duty of the city officers to examine it from time to time to see if it is properly constructed, and apparently secure, nor to see whether the occupants of the cellars under the coal holes keep the covers fastened on the in- side. Cooper V. City of Milwaukee, 97 Wis., 458. 198 DEFECTIVE SIDEWALKS. §804-808 §804. Same — defect in — notice. ^ Plaintiff stepped upon a coal hole cover, which tipped up, throwing her down, and causing the injuries complained of. There being no proof of actual notice of the defect to the city, or that it had existed for so long a time as to charge the city with notice of the defect, the municipality 'is not liable for the injuries sustained. Id. §805. Crossing not made by city, but adopted by it — Plia- bility for. In an action for injuries caused by the defective condition of a footbridge or upon crossing a gutter in a city street, it ap- peared that the apron was built by the owner of adjoining prop- erty, without consent of the city, near to but not directly in the line of a street crossing; and that the city had never formally adopted it, nor made any repairs upon it; but there was evi- dence that it had existed there, and been actually used as a part of a public thoroughfare, for a considerable length of time, with' knowledge of the city and without objection on its part. Held, that proof of these facts would create a presumptioti that the city had adopted the apron as part of the street crossing, and had become liable for injuries caused by a defective condition of the apron, of which it had notice; and that the continuance of such condition for several weeks would create a presumption of notice. Johnson v. City of Milwaukee, 46 Wis., 568. §806. Defective crossings — sloping apron. A plank apron crossing on a grade of If inches to a foot, without cleats on the planking, or railing on the sides to guard a traveler from stepping off into the gutter, is not defective as a matter of law. Morrison v. City of Madison, 96 Wis., 453. §807. Slant in sidewalk. A slant of from 3 to 3f inches in a sidewalk in a distance of 2J feet is not such a defect in the construction, that will justify the court as a matter of law in holding the city liable for per- sonal injuries alleged to have been in part caused thereby. Schroth V. City of Prescott, 63 Wis., 653. §808. Planks rotting away— question for jury. The plaintiff claimed she was injured by reason of a defec- tive walk, the defect consisting of the rotting away of one of the planks for a space 2^ or 3 inches wide, and an inch, or an inch and a half in depth, and extending a foot or more in length, 199 §809-812 MUNICIPAL CORPORATIONS. in which plaintiff claimed her foot got caught. The question as to such condition being a defect was properly for the jury. Id. §809. Irregularity in ordinance directing walks to be built. Where a walk was constructed in pursuance of what pur- ported to be an ordinance of the city, and the city has recognized and used it for years, it is doubtful if, in an action for injuries caused by a defect in said walk, the city could take advantage of any irregularities affecting the validity of said ordinance. Colby V. City of Beaver Dam, 34 Wis., 385. §810. Defect outside traveled track — where plaintiff may recover. In an action for personal injuries alleged to have been re- ceived by a defect in a walk, a recovery by plaintiff will not be barred for the reason that the defect complained of is wholly outside of the travele(^' track or sidewalk used by the public for travel, if it is connected therewith so as to endanger the safety of such public travel thereon. Everman v. City of Menomonie, 81 Wis., 634. §811. When plaintiff may not recover. Where the defect complained of is wholly outside of the traveled track or sidewalk used by the public for travel, and not connected therewith so as to endanger the safety of such public travel thereon, there can be no recovery, notwithstanding the same was within the lines of the original survey of the street or highway, and in a private walk leading from such traveled track or sidewalk to a private building or place of business. Cart- right V. Town of Belmont, 58 Wis., 373. Fitzgerald v. City of Berlin, 64 Wis., 303. §812. Walks not built by city — duty to repair — city charter. The charter of defendant city, P. & L. Laws of 187'1, Ch. 224, after conferring upon the common council expressly the power to. direct the manner in which sidewalks shall be con- structed in the first instance by the lot owner, and to cause them to be built if the latter shall neglect to do so, further pro- yides that "whenever the street commissioner shall deem it necessary to repair any sidewalk constructed by said city within its limits," he shall direct the owner or occupant of the adjoining lot to make such repairs in a time and manner to be prescibed by the commissioner, and in case of his neglect, shall 200 DEFECTIVE SIDEWALKS. §813-816 cause the same to be made at the expense of the lot, etc. Held, 1. That the power to direct repairs here given extends to all sidewalks which tlie city had ordered to be built, and over which it exercises care and control. 3. That under this charter the city is bound to repair any defect in such a walk, which en- dangers the safety of travelers. Colby v. City of Beaver Dam, U Wis., 285. ■ §813. Negligence in making repairs — ^bad planks. In an action for personal injuries caused by a plank in side- walk breaking, it appeared the walk was constructed of plank placed lengthwise the streets, on stringers 4 feet apart, the plank bging 8 inches wide and 2 inches thick. At the place of the accident, a plank had decayed in part, and had been repaired by cutting out the decayed part for 4 inches in width and 4 feet in length, and putting in a new piece, 2 inches thick. The repair had been made about 3 weeks, when plaintifif, who weighed 175 lbs., stepped on the small plank near the middle, hroke it, and was injured. These facts, held sufficient to show the plank was defective, and the city negligent in selecting and using the plank as it did. Moore v. City of Platteville, 78 Wis., €44. §814. Sufficiency of walk — contributory negligence — ques- tion for jury. Upon principles too well established to require reiteration, the question as to the sufficiency of a sidewalk at the place of injury, is for the jury and not for the court. The same is true as to the contributory negligence of the plaintif? which, when not disclosed by plaintiff's evidence, is purely a matter of de- fense. McNamara v. Village of Clintonville,^ 62 Wis., 207. §815. What sidewalks cities bound to repair. In cities of this state, the use, for a series of years, by the people traveling on foot along a public highway, of a part of such highway as a sidewalk or foot path, on one or both sides •of the carriage way, constitutes such path or walk a portion of the "traveled part" of such highway, which the city is bound to keep in repair,, and in safe condition for such use, and renders the city liable' for injuries resulting from a neglect of that duty. James v. City of Portage, 48 Wis., 677. §816. Liability of lot owner. The liability of a lot owner in a city, under its charter, for 201 §817-822 MUNICIPAL CORPORATIONS. injuries resulting from the unsafe condition of his sidewalk, in any case, depends upon his having had "due notice." Amos v. City of Fond du Lac, 46 Wis., 695. §817. Same. A lot owner is not liable for damages sustained by reason of a ciefective sidewalk in front of his lot in the absence of a statute creating such liability. Cooper v. Villige of Waterloo, 88 Wis., 433. §818. Same. Where a village charter provides that the trustees should require lot owners to build or repair side-walks, in certain cases, and to cause them to be repaired at the expense of Such lots in case of the neglect of the owners to do so, it does not render a lot owner liable for injuries caused by a defect in the walk in front of his premises which he was so required to repair. Id. §819. Same — regulating right of action. Sec. 1339b, S. & B. Ann. Stats.— providing that the person by whose wrong, default, or negligence, a defect m the highway is caused, shall be primarily liable for injuries happening by reason of such defect, — gives no new right of action, but merely regulates the remedy for rights of action otherwise created. Id'. §820. Primary liability — concurring negligence. Where the actual neglect of the city concurs with the neglect of the owner or occupant in causing the injury, the action may be brought in the first instance against one or both of the wrong-doers, and it is no defense to an action brought against either that the wrongful act or negligence of the other con- tributed to the injury. See Stetler v. Chicago & N. W. R. Co., 46 Wis., 497; Papworth v. City of Milwaukee, 64 Wis., 389. §821. Remedy for injuries from, for travelers only. The remedy of the statute making a city liable for injuries by reason of defective sidewalks is available only to those who were using the sidewalk for the purpose of traveling thereon when injured. Reed v. City of Madison, 83 Wis., 171. §822. Negligence of public officers — liability for.. It is a settled rule that municipal corporations are respon- sible for damages occasioned by the negligence or unskillfulness of their agents and officers in constructing public walks. Smith v: City of Milwaukee, 18 Wis., 63. 202 MISCELLANEOUS DEFECTS. §823-826 §823. Liability for permissiou to use. The city is not rendered liable by the mere fact that it had permitted the use of the sidewalk by the public for several years, the same not being within the limits of any recognized city highway. Johnson v. Milwaukee, 46 Wis., 568, and James V. Portage, 48 Wis., 677, distinguished; Bishop v. City of Cen- tralia, 49 Wis., 669. §824. Injury to married woman. Chapter 99, Laws of 1881, authorizes any married woman to bring and maintain an action in her own name for any injury to her person or character, the same as if she were sole, and any judgment recovered in such action becomes the sep- arate property and estate of such married woman. Shanahan V. City of Madison, 57 Wis., 276. e. Miscellaneous defects. §825. Accumulation of stagnant water. In an action against a city for darnages caused plaintiff's property in constructing streets across a marsh, whether any system of sewerage would be effectual to prevent stagnant water from afterwards accumulating thereon is a question of fact; and when that arises in any case it is for the jury tO' say, upon proper proofs, whether or not there was due care and skill in constructing the streets. Smith v. City of Milwaukee, 18 Wis., 63. §826. Neglect to provide sewerage — aright of action for. Where a city, by its neglect to provide proper sewerage in the grading of the street, creates a nuisance upon a private lot the city may provide for abating it, as for other similar improvements, and where the work for that purpose has been done by Contract in a regular manner, an assessment upon the lot of the cost of the work is valid at law, but the owner of the lot in such a case has a right of action against the city, for damages caused by the negligent construction of the street, and in case he enforces his legal remedy, he waives his right in equity to restrain a sale of the lot for the assessment If he neglects to resort to his equitable remedy in proper time he may be held to have waived it and be remitted to his action for dam- ages. Id. 203 §827-832 MUNICIPAL CORPORATIONS. §827. Sewers and drains — flooding private property. Where private property in a city is flooded by surface water and sewage, whether such property be on the grade of the street or below such grade, either by such water and sewage, after having been collected in a sewer or drain, escaping there- from to such property by reason of the negligent construction of such drain or sewer, or want of proper repair of the same, or by negligent discontinuance thereof by closing up the outlet, the city is liable, and this is so though, the sewer or drain was originally constructed wholly or in part only by private parties, if the municipality assumed the control and maintenance of the same. Schroeder v. City of Baraboo, 93 Wis., 95. §828. Surface water — diversion of. No difference exists in principle between the rights to dis- pose of surface water which may flow over or upon the streets and public grounds of a town or city or the property of a private proprietor, and that which falls upon such places in rain or snow. Champion v. Town of Crandon, 84 Wis., 405. §829. Same — same — ^public improvement causing. A town has the right to change the natural flow of surface water by improvements and works on its streets or highways, entirely within their limits, even though such water is ihereby caused to flow upon adjoining lands. Id. §830. Same — same — negligent work. The fact that the work in such a case was done negligently or upon a defective plan does not give the owner of the adjoin- ing land a right of action for injuries resulting from such diversion of the surface Water thereto. Id. §831. Same—construction of streets. Where the passage of surface water through a ravine is obstructed by the officers or agents of a city in the construction of streets, the owner of adjacent land injured by such obstruc- tion cannot recover damages therefor. Hoyt v. City of Hudson, 27 Wis., 656. §832. Same— stoppage of, by grading streets. The stoppage of surface water by the grading up of a street is not an act upon which an action for damages against a city can be predicated. Harp v. City of Baraboo, 101 Wis., 368. 204 MISCELLANEOUS DEFECTS. §833-838 §833. Same — same. The arrangement of gutters, ditches, etc., by a city, in the course of grading and adjusting its streets, whereby the course of surface water is changed and its flow in certain directions or at a certain place increased, is not actionable. Id. §834. Same — same — two innocent acts in combination. A city can no more be liable for the result of two innocent and lawful acts in combination than for the separate conse- quence of either such acts. Id. §835. Same — obstruction of — grading streets. A< municipal corporation in grading and improving its streets is not liable for any damage resulting from the obstruc- tion of the flow of mere surface water, caused by such improve- ment, and is not bound to make any provision for carrying off such waters. Waters v. Village of Bay View, 61 Wis., 643. §886. Same — same — diversion of. Although the owner of land cannot divert froni its natural course, and throw upon the land of another, to his injury, sur- face water falling or accumulating on his own land, yet the owner of lower land may lawfully obstruct the flow of surface water thereon from the adjacent higher grounds of other pro- prietors, and in so doing may turn the water back upon such adjacent grounds, or ofi from his own land on to or over the lands of another. Cities, towns and villages, as owners of lands for highway and other public purposes, have the same rights as private owners to obstruct or repel the flow of surface water. Hoyt V. City of Hudson, 27 Wis., 656. §837. Same — damage from — nnanthorized change of grade. Where a city unlawfully and negligently deposited earth and material in a street, so as to raise it above the established grade, it is liable to the adjoining owner for surface water thereby caused to accumulate on his land. Addy v. City of Janesville, 70 Wis., 401. §838. Same — water course — definition of. A "water-course" is a stream usually flowing- in a particular direction, in a definite channel, and discharging into some other stream or body of water; and the term does not include surface 205 §839-844 MUNICIPAL CORPORATIONS. water conveyed from a higher to a lower level for limited periods during the melting of snow, or during or soon after the fall of rain, through hollows or ravines which at other times are dry. Hoyt v. City of Hudson, 27 Wis., 656. §839. Same— liability for overflow of — gutters. . A municipality is liaKle for surface water caused to flow upon a Jot, even if below grade, if caused by its negligent or unskillful construction of a gutter, or its negligence in keeping the same in repair and free from obstructions. Waters v. Bay View, 61 Wis., 643, distinguished; Gilluly v. City of Madison, 63 Wis., 518. §840. Gutters — ordinance requiring abutter to clean. A municipal ordimance requiring tihe owner of a lot abut- ting on a street to keep- all the gutters opposite his premises in good repair and free from obstructions should be construed as relating only to the ordinary open gutters in the streets, and not to a blind ditch covered with plank for a distance of 70 feet, and having the plank covered with earth. Id. §841. Same — construction of to carry off surface water. A city, in grading its streets and constructing gutters thereon for carrying off surface water, is not bound to provide against extraordinary storms such as private persons of ordi- nary prudence do not usually anticipate and guard against. Allen V. City of Chippewa Falls, 52 Wis., 430. §842. Flpwage of land — public work. Valuable farms cannot be submerged and destroyed by means of certain public work being done by a city, and the owners have no redress therefor, because the work has been done under authority of an act of the legislature. Barden v. City of Portage, 79 Wis., 126. §843. Right of abutter to deposit material in street. The right of a lot owner in a city to deposit material in the street when building, is that of an abutter, and not as the owner in fee to the center of the street, and is founded on and limited by reasonable necessity, to be determined in such case by the facts thereof, except when regulated by reasonable municipal regulations. Raymond v. Keseberg, 84 Wis., 302. §844. Same. Where the owner of a city lot, abutting on a street, has 206 MISCELLANEOUS DEFECTS. §845-848 occasion to build thereon, and for that purpose to dig a cellar, he may rightfully lay his building materials and earth within the limits of the street, taking care not improperly to obstruct the street, and- removing them within a reasonable time. If the earth excavated from the lot in such a case is unnecessarily and dangerously extended into the street, or raised to an unnecessary and dangerous height, or insufficiently guarded against accidents to passengers or suffered to remain an unrea- sonable length of time (longer than would be required for its removal in the exercise of ordinary care and diligence), in either case the obstruction becomes as much a nuisance as if placed there without c6lor of right.' In an action for injuries caused by such obstruction, all the questions of fact above indi- cated, where there is evidence bearing upon them, should be left to the jury, with proper instructions. Hundhausen v. Bond, 36 Wis., 29. §845. Same — ordinance. Earth excavated from a building lot and placed in and adjoining street for removal elsewhere, cannot be regarded as building material within the meaning of a city ordinance pro- vided that "No person shall place or cause to be placed any stones, timber, plank, boards or other materials for building in any upon any street, etc. Id. §846. Same — easement. The owner of a city lot has an estate in fee to the center of the adjacent street, and has a right to the enjoyment of any use of his estate not inconsistent with the servitude to which it is subjected. Id. §847. Animals running at large. It has never been established and cannot be held that a hog or other animal running at large is necessarily a nuisance in the legal sense of that term.. Kelley v. City of Milwaukee, 18 Wis., 83. §848. Assessment on lot for abating. Where a lot owner has sought the interference of a court of equity to restrain a sale of a lot for an assessment for abating a nuisance thereon the contractor or his assignee cannot recover the amount of such assessment from the city on the ground that the lot owner may, if he chooses, prevent its being enforced. Smith V. -City of Milwaukee, 18 Wis., 63. 207 §849-853 MUNICIPAL CORPORATIONS. §849. Ordinance — duty of common council. Where authority is conferred upon a city council in per- missive language, it is still imperative upon them to exercise it, if other persons have an absolute right to have it exercised ; but where the power is properly discretionary the corporation is not liable for the refusal to exercise it. Kelley v. City of Mil- waukee, 18 Wis., 83. .§850. Disposal of garbage. It is not prima facie an act of negligence to cast the garbage of a city upon Lake Michigan, 15 miles from shore. Kuehn v. City of Milwaukee, 92 Wis., 263. §851. Public improvements. Where a city contracts for sidewalk, gutter, sewer, or other similar improvements, the expense being chargeable to abutting owners, such fact does not make the contractor the agent of the owners rather than of the city. If such works were not regarded as public works, it seems the legislature could not authorize the city to make them. Harper v. City of Milwaukee, 30 Wis., 365. f. Liability. §852. Rule stated. To render a town or city liable for an injury sustained on a highway, it must have been sustained by a traveler, and the defect of the way, either alone or combined with some matter of pure accident, for which the traveler was at no fault, must have been the sole cause of the injury. Hawes v. Town of Fox Lake, 33 Wis., 438; Houfe v. Town of Fulton, 29 Wis., 296. §853. Same. With certain recognized qualifications, not applicable to this case, the duty of a town to keep its highways in proper repair, is absolute and unconditional (Ward v. Jefiferson, 24 Wis., 342), and if it fails to do so, and one passing over a high- way in the exercise of proper care, receives injuries in person or property in consequence of its insufficiency, the town is liable to him therefor under Sec. 120, Ch. 19, R. S. 1858; or, if the injuries cause his death, is liable to his personal repre- sentatives under R. S. 1858, Sees. 12 and 13, Ch. 135. Bums V. Town of Elba, 32 Wis., 605. 208 LIABILITY. §854-858 §854. Exception to statutory liability. By the statute (R. S. 1858, Ch. 19, Sec. 130), a town is abosultely liable for an injury to a traveler caused by a defec- tive highway, himself being in the exercise of due care, except where there was a latent defect in the highway, or the town had no notice of the defect, actual or constructive, or had not time to repair the defect or guard the public. Ward v. Town of Jeflferson, 24 Wis., 343. §855. When insufficiency exists. The insufficiency or want of repairs in a highway, which renders a town liable for injuries resulting therefrom (R. S., Ch. 19, Sec. 120) exists wherever the road is not a reasonably safe and convenient one, in view of the amount and character of the travel thereon, the nature of the country through which it runs, etc. Wheeler v. Town of Westport, 30 Wis., 392. §856. Must repair promptly, or maintain guards. Where the usual traveled track of a highway has become dangerous, the town is bound either to repair it at once, or at least to maintain suitable guards to prevent persons traveling on it. Seward v. Town of Milford, 21 Wis., 485. §857. Estoppel. It is a proposition generally correct, that a town is not liable for damages caused by an insufficiency, unless the place where the injury was received and the "insufficiency existed, was a lawful public highway, which it was the duty of the town to keep in a state of reasonable safety and repair. Yet when a road has been opened or a bridge erected by a town or its officers, or where one already existing without requisite author- ity, has been adopted by them, by acts clearly indicating their intention that it shall be regarded as a public highway, the town is estopped from denying it is a lawful highway, in an action for injuries caused by defects thereof. So held in a case where a town denied its liability for injuries caused by the insufficiencies. of a bridge (which had been maintained for many years without objection), on the ground that it had been built without the authority of the legislature over a stream which was, in contemplation of law, navigable. Houfe v. Town of Fulton, 34 Wis., 608. §858. Accident happening partly from other cause. If an accident happen partly from a cause in respect to 14 209 §859-863 MUNICIPAL CORPORATIONS. which a want of ordinary care could not be imputed to the traveler, as from a defect in the axle of a vehicle in which he was driving — the town is liable, if the accident would not have occurred but for the highway being out of repair. Dreher v. Town of Fitchburg, 22 Wis., 675. §869. Statute applies to cities. Sec. 130, Ch. 19, R. S. 1858, making towns liable for damages resulting from defective highways, is applicable to a city, whose charter contains no provisions inconsistent there- with. Kittredge v. City of Milwaukee, 26 Wis., 46. §860. Defective bridge in village — when town liable for. A town is liable for damages caused by a defective bridge in a village within the limits of such town, unless the village is one incorporated under special charter, and its streets and highways regulated by special provisions, and not one organ- ized under the general law, or is situated on a street laid out in such village and not upon a town, county or state road. Spearbracker v. Town of Larrabee, 64 Wis., 573. §861. Defective plank and stringers — general knowledge. A city is liable for injuries resulting from defects in a plank sidewalk, where the authorities knew that the plank was very old and the stringers badly decayed, though not aware that the particular planks which caused the injury were loose. Weisenberg v. City of Appleton, 26 Wis., 56. §862, Unexpected defect — sudden freshet. A town is not liable for injuries caused by a bridge being out of repair if it became so suddenly and unexpectedly by reason of a freshet in the stream over which it was built, and sufficient time had not elapsed before the accident to enable the town authorities either to repair the bridge or guard travelers against the danger. Jaquish v. Town of Ithaca, 36 Wis., 108. §863. County bridge abutting on city. Where a county purchases of private owners a bridge, one end of which abuts upon a city, and the approach to the bridge on the city side has been constructed over land not included in any city highway, unless the city adopts such approach as one of its highways, the county only, and not the city, is under obligations to keep in repair not- only the bridge itself (State 210 LIABII,ITy. §864-868 ex rel Neeves v. Supervisors, 41 Wis., 28), but also said approach, and is liable for injuries caused by its defective con- dition. Bishop V. City of Centralia, 49 Wis., 669. §864. Barriers — duty to erect. Where the course of a highway was changed so that it crossed a river at a different point, where a. new bridge was constructed, hut the former track, leading to a defective old bridge, remained equally as passable as the new one, and was more direct, it was the duty of the town to erect a barrier at the intersection of the two tracks to warn travelers to keep off the old track, and to maintain such barrier as long as the old track remained in such condition that, to a stranger thereto, it presented the appearance of a traveled highway; and the absence of a barrier under such circumstances is a defect in the higihway. Schuenke v. Town of Pine River, 84 Wis., 669. §865. Defective bridge — absence of guards. The absence of any guards or railing at the side of a bridge forming part of a highway, is a fact from which the jury ma!y find the bridge was defective, within the meaning of the statute, rendering the town liable for injuries resulting from defective highways. Houfe v. Town of Fulton, 39 Wis., 296. §866. Liability for removal of barrier. Where a barrier erected at the intersection of the tracks had been substantially gone for several months, the town was chargeable with notice of that fact. "Schuenke v. Town of Pine ' River, 84 Wis., 669. §867. Accident caused by removal — defective bridge. When, by reason of the lack of a barrier, a traveler in the night time passed over the old track and was injured while attempting to cross a defective old bridge some distance there- from, the injury was caused by the defect in the highway, although it happened at a point several rods distant there- from. Id. §868. Beads and bridges. The statute which provides compensation to person or prop- erty for damage caused by the insufficiency of a highway, refers to roads and bridges which are public highways, and which the town is bound to repair. Green v. Town of Bridge Creek, 38 Wis., 449. 211 §869-873 MUNICIPAL CORPORATIONS. §869. Same. Thus, where a bridge was built by volunteers, for their own accomodation, and without authority from the town, sev- eral rods from the highway, and plaintiff was injured while crossing it, the defendant was not liable for damages caused by its defective condition. Had the bridge been erected in the highway, there would be much reason in holding the town was bound to adopt it, or remove it altogether. Id. §870. Obstructing flow of water from river. When a city constructs a street in a negligent and imskill- ful manner, so as to prevent the waters of a neighboring river, in times of high water, from passing in their natural course to another river, and builds a highway or embankment without culverts so as to cause the waters to overflow and injure the land, the city is liable to respond in damages to the owner of such land. Spelman v. City of Portage, 41 Wis., 144. §871. Bepairing on Sunday. If it appeared that the defect in a highway, created on Sat- urday night, was eminently dangerous to travelers, it might be the duty of the town officers, if they knew of its existence, to repair it on Sunday, or to adopt means to prevent accidents on that day, until repairs could be made. Alexander v. Town of Oshkosh, 33 Wis., 277. §872. Defective bridge — ^voluntary repairs by village. Where a village has occasionally made some slight repairs upon a bridge which the town was bound to maintain, the town is still liable for damages occasioned by a Wcint of repair. Spearbracker v. Town of Larrabee, 64 Wis., 573. §873. Same — question for jury. i In an action for injuries to the female plaintiff alleged to have been caused by a defective bridge constituting a part of a highway in the defendant town, it appeared that horses driven by said plaintiff's brother broke through the bridge in such a manner that the brother could not extricate one of them; and that said plaintiff, at her brother's request, went for help; and the plaintiff's evidence tended to show that her exertions in going for help afterwards brought upon her a miscarriage, damages for which are sought in the action. Held, that the question whether the injuries were caused by negligence on 212 LIABILITY. §874-878 her part in making such exertions, was for the jury, and the court properly refused a nonsuit. OHver v. Town of LaValle, 36 Wis., 592. §874. Foot-bridge — when part of public way. A bridge built by a citizen desiring to use it, from lumber furnished by the town authorities, used constantly by pedes- trians, and forming part of a sidewalk in a street, is a public way both by public user and acceptance by the town of the platted street in which it was erected. McDonald v. City of Ashland, 78 Wis., 351. §875. Drawbridge — ^barriers or lights — competent bridge- tender. Where a person walks through an open draw, and is drowned through the negligence of a city in not having barriers or lights to warn travelers, on a bridge used as a highway, the city will not be absolved from liability by the employment of a competent bridge-tender to operate the draw. Stephani v. City of Manitowoc, 89 Wis., 467. §876. Same — ^joint liability of town and village. Where a bridge over a navigable river Ues partly within a town and partly within a village, and both have power to raise money by taxation, for the purpose of building and repair- ing such bridge, and both have the charge, management and control of said bridge, and the draw therein, they are jointly and severally liable for injuries caused by an obstruction to navigation by such bridge. Weisenberg v. Winneconne, 56 Wis., 667. §877. Grading street — leaving same in dangerous condi- tion. Where a city, in grading a public street which is in actual use by the pubHc, permits the same to remain in a dangerous condition, with no barriers, signals or lights to warn passen- gers of the danger, it is liable for all damages caused to any person by reason of its negligence and omission of duty. City of Milwaukee v. Davis, 6 Wis., 377. §878. Deviating from traveled track. If a traveler, without authority, or for his own pleasure or convenience, deviates from the traveled track (which is in good condition), and in so doing meets with an accident from some 213 §879-881 MUNICIPAL CORPORATIONS. cause outside of such track, the town will not be liable for resulting damages. Kelley v. Town of Fond du Lac, 31 Wis., 179. I §879. Same, when peimissible. But if the traveled portion of the highway is obstructed or dangerous, making it necessary for a traveler to deviate there- from, and in so doing he uses ordinary care, the town will be liable for damages accruing to him from an accident caused by any defect or obstruction in that portion of the highway over which he is thus necessarily passing. Id. §880. Same — same— removal of barriers. In case of injuries in attempting to pass over streets while they are undergoing repair or improvement, a city is liable only for a want of ordinary care; and where a street, during the process of repair, has been njade safe, so far as the public is concerned, by barriers or other proper precautions, but after- wards, suddenly and without warning to or fault of the city, becomes unsafe by the removal of such barriers or other pre- cautions, the city is not liable for damage occasioned thereby, without actual or implied or presumptive notice of it of such removal, and the lapse of a reasonable time for guarding against the consequent danger. Klatt v. City of Milwaukee, 53 Wis., 196. §881. Travelers deviating from highway — ^traveled track. Towns are not required to make highways suitable for travel for their entire width, but only a part thereof, sufficient in extent for the safety and convenience of travel. And it is a well-settled general rule, that if travelers voluntarily and with- out cause deviate from the traveled track, the town will not be liable for resulting injuries. The above rule, and tlie rule that the town is not bound to furnish a separate track for foot travelers, will not necessarily prevent a recovery for inju- ries received while plaintiff was walking outside of the traveled track, but so near it that he had a right to presume that the place where he walked was safe for travel; the injuries being caused by obstructions which rendered the road unsafe for persons using that part of it which had been or ought to have been prepared for travel. Wheeler v. Town of Westport, 30 Wis., 393. 214 LIABILITY. §882-885 §882. Same — accidental deviation. Although it is the rule of law that wTiere a traveler upon a highway, for his own convenience, and without necessity therefor, deviates from the traveled track and is injured thereby, he cannot recover; yet where the defect is so near the track as to be struck by the vehicle where a horse suddenly shies or swerves to the side of the road in order to a.void a mud hole or any oither obstructiom, or by reason of the horse traveling on one side of the higlbway, as a single horse is quite liable to do, the municipality is lialble. Boltiz v. Town of Sullivan, 101 Wis., ,608. §883. Same — same — notice. Where an actionable defect in a highway is a defect in the original preparation of the road for use and has so remained down to the time of the accident, there is no question of notice in the case for submission to the jury. Boltz v. Town of Sul- livan, 101 Wis.. 608. §884. Same — same — defect outside traveled track. Where an obstacle or obstruction is so near the traveled track that it was not necessary for a traveler to really leave the road or cross the traveled track in order to reach it, it is a question for the jury to say whether the defect was action- able or not, by reason of its being sufficiently near the traveled track to render the use of the space appropriate for travel, dangerous for persons using the same in the exercise of ordi- nary care. Boltz v. Town of Sullivan, 101 Wis., 608. §885. Same — same— knowledge of town oficers. In an action against a town for injuries caused by an obs,truction in the highway, the evidence showed that plain- tiff, while traveling on a road in the day time in a roadcart, drawn by a single horse, driven by her son, was thrown from the seat upon the dashboard and the left wheel, and seriously injured, by reason of the right wheel of the roadcart striking a small stump that was concealed in the weeds a short distance outside of the right hand wheel track. There was a mud hole in the road near the stump, and as the horse arrived at the place of the accident he swerved to the right to avoid the mud hole, thereby running the right wheel out of the wheel track a sufficient distance to strike the stump. Upon this state of facts 216 §886-890 MUNICIPAL CORPORATIONS. the jury was instructed that if the town officers knew or by the exercise of ordinary intelHgence might have known that the stump existed so near the traveled track as to render the highway dangerously defective for the use of travelers in the exercise of ordinary care, and plaintiff in the exercise of ordi- nary care, drove against it and was injured, the town is liable, and the instructions were approved. Id. §886. Same — defects outside traveled track — contributory negligence. One who is driving his team upon a highway and without necessity existing therefor, turns out of the limits thereof upon a temporary track, and when returning to the traveled track of the highway runs against a stump, causing the injuries complained of, cannot recover. Strieker v. Town of Reeds- burg. 101 Wis., 457. §887. Defects in worked and traveled part. A town is liable for defects anywhere in the worked and traveled part of a highway, although the same may be wide enough for three or four teams abreast. Matthews v. Town of Baraboo, 39 Wis., 674. §888. Same. Towns are not bound to keep highways in a suitable con- dition for travel in their whole width; and their liability is limited, primarily, to damages caused by defects in the traveled track. Kelley v. Town of Fond du Lac, 31 Wis., 179. §889. When county liable. Under the statutes, counties are not liable for damages by reason of the insufficiency of any bridge, sluiceway or road, except in the single case of a main traveled highway, or parts of such highway, which the county board "have adopted as a county road." Stilling v. Town of Thorp, 54 Wis., 528. §890. Hole in corduroy road. In an action for personal injuries caused by a defective highway there was evidence that there were deep, sharp holes in the corduroy road between logs, 'caused by the wearing out or rotting of the logs of which the road was made, and it was held sufficient to sustain a verdict to the effect that the highway was defective and that the town had notice of its condition. Luedke v. Town of Mukwa, 90 Wis., 57. 216 LIAIilLITY. §891-894 §891. Hole in road near culvert. In an action for personal injuries from defective highways, the evidence, tending to show that at the place of the accident the traveled track was narrowed in order to cross a culvert shorter than the width of such track ; that at the north end of the culvert was a hole two or three feet deep ; that plaintifit' was being driven along the highway in the night time by a livery- man, when the wheel of the wagon ran into such hole, wagon upset, and the plaintiff received the injuries complained of; that both plaintiff and the driver were familiar with the high- way, but neither had ever observed the defect therein, although the same had existed a long time; that both of them were in the exercise of reasonable care at the time of the accident, and that it was too dark to see the hole or the precise location of the culvert; held, sufficient to sustain a verdict for the plaintiff. Rumrill v. Town of Delafield, 82 Wis., 184. §892. Obstruction outside of traveled track. To render a town liable for injuries by reason of an alleged defective highway^ the object or defect causing the injuries need not be within the traveled track, provided it is so con- nected with the traveled track as to render the same unsafe and inconvenient to those traveling thereon. Slivitski v. Town of Wien, 93 Wis., 460; Houfe v. To^wn of Fulton, 39 Wis, 396; Kelley v. Town of Fond du Lac, 31 Wis., 179; Burns v. Town of Elba, 32 Wis., 605; Cremer v. Town of Portland, 36 Wis., 92; Kenworthy v. Town of Ironton, 41 Wis., 647; Cartright v. Town of Belmont, 58 Wis., 370; Fitzgerald v. City of Berlin, 64 Wis., 203, 207. §893. Same. To render the town liable, the object causing the injury need not be within the highway, if so connected with it as to affect the safety and convenience of those using the traveled track. But, although there be a defect or obstruction in the highway as located, yet if it is not in the traveled part of the road, nor so connected with it as to affect the safety or con- venience of those using the traveled path, the town is not responsible for the injury. Wheeler v. Town of Westport, 30 Wis., 393. §894. Same. A citv street crossed a ravine 6 or 8 feet deep. The author- 217 §895-897 MUNICIPAL CORPORATIONS. ities had built in the center of the street a substantial plank bridge, with proper railings and guards, and about 20 feet therefrom, a good sidewalk properly guarded. The ravine itself was not used for street purposes. In the ravine was a hole or well, 4 feet deep, and filled with water. A little boy of 5J4 years old stopped at this well to fill his rubber ball, and get a drink, and in attempting to do so, fell into the well and was drowned. The well had not been authorized or dug by the city authorities, nor was there any direct evidence to show they knew of it. Held, city not liable. Goeltz v. Town of Ashland, 75 Wis., 642. §895. Insufficiency — ^boulders in road. At a certain point in a highway, whose general width was less than fifty feet, a strip of land nearly or quite rectangular projected into the general line of the highway on one side, to a depth of from fourteen to twenty feet; and there was a line of boulders from one to two feet high along the three sides of the strip adjoining the road. The traveled track ran close to these boulders on all three sides of said strip, its direction being twice changed abruptly to conform thereto. At a dis- tance of nine feet from said row of boulders on the other side of the traveled track, the road Was made impassable by dtep gullies. The highway was considerably traveled, was over an open prairie and might easily have been made passable in its whole breadth of thirty feet along said projecting strip; and the strip itself might have been condemned, and the road opened over it. Held, that upon these facts the jury might well find the road' insufficient. Wheeler v. Town of West- port, 30 Wis., 392. §896. Same — structure ouside highway. The erection of a tent adjoining tlie sidewalk, but not within the street limits, and the use of it as a shooting gallery, is not an "insufSciency" in the highway within the meaning of Sec. 1339, R. S., although plaintifif was injured by a rifle ball fired by some one therein, wihile he was traveling on the street. Hubbell V. City of Viroqua,. 67 Wis., 343. §897. Insufficiency as matter of law — embankment in street. There being a depression in one of the traveled streets of a 218 LIABILITY. §898-901 city, the authorities raised one-half in width of the street over the depression, by embankment some six feet high in the middle and gradually lessening towards each end; and the side of the emibankment, next to that half of the street which was left in its natural state, was precipitous and without railing or barrier. Held, that the' street was unsafe, as a matter of la-vy, even though each half was safe by itself. Prideaux v. City of Mineral Point, 43 Wis., 513. §898. Same — question for jury. While in extreme cases the insufficiency of a highway may be so great and manifest as to warranit holding it insufficient as a matter of law, the question is generally one of mere fact for the jury, upon evidence of the actual condition of the high- way. Benedict v. City of Fond du Lac, 44 Wis., 495. §899. Same — same. The insufficiency of an ordinary highway is a question of fact for the jury, unless the evidence is all one way and the insufficiency clear and beyond question. Schillinger v. Town of Verona, .88 Wis., 317. §900. Same — same. The question of the insufficiency of a highway, in actions for damages alleged to have been caused thereby, when there is any evidence reasonably tending to establish the fact, is one for the jury, and the court will rarely be justified in taking it from them. Barstow v. City of Berlin, 34 Wis., 357. §901. Boat in street frightening horse. The owners of a boat placed it about 5 p. m. near the waters of a lake, preparatory to launching, one end near the water and the other near the middle of a village street. About 10 a. m. next day plaintiff led his horse by the obstruction without injury and drove on. He returned about 11 :30 a. m., and as the boat was substantially in the same position, he got out of the buggy, took the horse by the bit, and again started to lead him by the boat, but when opposite it, the horse plunged, the bit parted, and the horse got away and was injured. In an action against the village and the owners, the evidence is held to sustain the findings of the jury to the effect that the boat was not launched with reasonable care, prompt- ness and expedition, and was an object naturally calculated to 219 §902-905 MUNICIPAL CORPORATIONS. frighten horses of ordinary gentleness. Cairncross v. Village of Pewaukee, 86 Wis., 181. §902. Horses beyond control. If an accident, causing injury to a team or vehicle, or per- son traveling therewith, results from the fact that such team is at the time in a state of fright, or not under the driver's con- trol, the town will be liable if such condition of the team is itself caused by some defect in the highway, but not otherwise. Kelley v. Town of Fond du Lac, 31 Wis., 179. §903. Object in street frightening horses — exhibiting wild animals. Where a city licenses an exhibition of wild animals, know- ing that it is calculated to frighten horses and endanger the lives and property of persons traveling in the streets, and the officers and agents of the city knowingly and carelessly allow one of its streets to be obstructed by such exhibition, and a person traveling with a team along such street is injured in consequence of the team becoming thereby frightened and unmanageable, the city is liable in damages. Little v. City of Madison, 43 Wis., 643. §904. Same — same — license from city for. A license from a city to exhibit wild animals, specifying no place for such exhibition, is a license to exhibit in some suita- ble place; and the fact that the licensee makes the exhibition in a public street, and is permitted to do so by the negligence of the city officers, does not render the city liable for injuries resulting therefrom. A former decision herein (42 Wis., 643) explained; S. C, 49 Wis., 605. §905. Same — lawfully placed. The purpose for which a thing is in the street must and does determine in many cases, whether it is there rightfully or not, and a town is not liable for the injury which may result from a horse being frightened at objects placed in the highway, even if naturally calculated to frighten horses of ordinary gentle- ness, if such objects are lawfully there, and the use is not unreasonably prolonged, and there is no notice to the town of an unlawful use being made of the highway. Loberg v. Town of Amherst, 87 Wis., 634. 220 LIABILITY. §906-910 §906. No means to repair. In an action 'against a town for injuries caused by a defective highway, such town cannot throw the responsibihties upon its officers, although in certain cases it may have a remedy against them ; neither can it shield itself by the plea that it had no means at command with which to keep its highways in repair. Burns V. Town of Elba, 32 Wis., 605. §907. Same. Proof in such a case that the defendant municipality has expended all the means at its disposal in repairing its streets, will not excuse it, every municipality being bound, at its peril, to keep its highways in sufficient repair, or to take precau- tionary means to protect the public against danger of insuffi- cient highways. Prideaux v. City of Mineral Point, 43 Wis., 513. §908. Obstruction by snow — temporary road over private lands. Where the highway is obstructed by snowdrifts, and a tem- porary track is opened through adjoining private lands, the town is not liable for injuries resulting from a defect in such temporary track, even though the defendant's officers had per- /formed work on such road, and it has been traveled continu- ously for several weeks before the accident. Houfe v. Fulton, 34 Wis., 608j distinguished; Bogie v. Town of Waupun, 75 Wis., 1. §909. liability of third person. A gas company after laying a pipe in 1888, had complied with an ordinance requiring it to restore the street to its former condition "as near as may be." It had also kept the street in such condition for a year afterwards. In 1889, the city graded and improved the street at that place, and left it in apparently good condition. Held, that the gas company was not liable for injuries caused by a depression over such pipe in 1890; and, the above facts being shown by the undisputed evidence, a verdict was properly directed in favor of the gas company. Grundy v. City of Janesville, 84 Wis., 574. §910. Primary liability. The city is primarily liable for- injuries arising from a defect suffered to remain in a street, although a third party may be liable over in tort. Kittredge v. City of Milwaukee, 26 Wis., 46. 221 §911-915 MUNICIPAL CORPORATIONS. §911. Same. Whether, if the action against the person primarily liable were prosecuted with due diligence, the time of its pendency- would be excluded in computing the statutory limit of the right of action against the city, not considered. McFarlane v. City of Milwaukee, 51 Wis., 691. §912. Same — ^negligent contractor. Under Ch. 471, Laws of 1889, a contractor for street work, whose negligence Caused a defect in a street by reason of which a person was injured, is primarily liable for the damages aris- ing from such injury, and it is immaterial whether he was or was not an independent contractor. KoUock v. City of Madi- son, 84 Wis., 458. §913. Individual liability of city officers. The provisions of a city charter required all work for the city to be let by contract, but the street commissioners did not comply therewith and caused a bridge to be built by materials furnished by them, and under the supervision of a person appointed by them. Plaintiff being injured through the negli- gence of some of their employees, brought suit against the commissioners and the city jointly. Held, the commissioners were individually liable, and the city not. Robinson v. Rohr, 73 Wis., 436. §914. Obstructions in street — liability of lot owner and contractor. Where an obstruction or defect created or caused in a street by a contractor engaged in erecting a buiding for another, is purely collateral to the work contracted to be done; and is entirely the result of the wrongful act of the contractor or his workmen, the employer is not liable for injuries caused thereby to a third party. But where the obstruction or defect which occasions the injury results directly from the acts which the contractor has agreed and is authorized by his employer to do, the employer is also liable to the injured party; and an action will lie against the employer and contractor jointly. Hund- hausen v. Bond, 36 Wis., 30. §915. What constitutes defect — gutter crossing. Where on a declivity in a city sevenal streets intersect each other, and are paved and worked in accordance with an estab- / 222 LIABIUTV. §916-918 lished grade, which does not appear and is not shown by evi- dence to be defective, the mere fact that a cross-walk and stone gutter 8 feet wide parallel with it, otherwise properly constructed, and not out of repair, crosses one of the side streets upon an angle, a little less than a right angle, and the middle of the gutter for a space of about 30 feet in the middle of such street only has a depression of from five to six inches, and out- side of that space only a depression of from 8 to 9 inches, the same does not constitute such a defect as to render the city liable therefor. Baker v. City of Madison, 56 Wis., 374. §916. Same — ditch in middle of villag^e street. A village street had a ditch 3 or 3 feet deep running through the middle of it, a,nd the roadbed on one side of the ditch had been graded. An old wagon road, much traveled, btit not a highway, adjoined said street, and ran into it at an acute angle, ending at the ditch. Plaintifif's team was coming along the street in question, and whea near the intersection with the old wagon road, became frightened at a locomotive blowing ofif steam, and being momentarily beyond control, jumped the ditch in the direction of the old road, throwing plaintiff from the wagon, and injuring her severely. Held, that the ditch was an insufficiency or want of repair in the stteet. Hein v. Vil- lage of Fairchild, 87 Wis., 258. §917. Question for jury— hatchway in sidewalk. In an action for injuries to plaintiff's person caused by the defective condition of a sidewalk in defendant city, it appeared that the plaintifif fell through a hatchway in the sidewalk, the door of which was open; that the door was seven and a half feet long, and three feet wide, and there was no guard to pro- tect passengers; that the door and hatchway had existed in said sidewalk several years, and had frequently been opened and' left so for some minutes. Held, that it was error to nonsuit the plaintifif on the ground that the presence of such door and hatchway, and the uses made of them, did not constitute such an insufficiency in the walk as would render the city liable. That question should have been left to tlie jury. Barstow v. City of Berlin, 34 Wis., 357. §918. Same — stump in highway. In an .action for personal injuries, it appeared there was 223 §919-923 MUNICIPAL CORPORATIONS. an old stump in the highway, about 18 inches high, and which had been there for 18 years. Plaintiff lived on same highway, about 80 rods from the place, and knew of the stump. While traveling in the night time on a parallel track, recently grav- eled, her wheel struck the stump, whose existence she had momentarily forgotten, and her arm was broken. The ques- tion as to whether the presence of the stump in that place was such negligence as made the town liable for the plaintiff's acci- dent was properly for the jury. Hinkley v. Town of Rosen- dale, 95 Wis., 271. §919. Same — condition of sidewalk. In general, the question whether a particular condition of a sidewalk or street, considered either in respect to the grade or the manner of construction, amounts to a defect, rendering the municipal corporation liable for accidents resulting from such condition, is a question of fact for the jury. Some excep- tions, as in Cook v. Milwaukee, 24 Wis., 270 and S. C. 27 Wis., 191. McMaugh v. City of Milwaukee, 32 Wis., 200. §920. Same. The question whether the highway, at the time and place of the injury complained of, was insufficient or out of repair, is one of fact for the jury, under proper instructions. Wheeler v. Town of Westport, 30 Wis., 392. ' §921. Same. In actions for injuries from negligence where the facts though undisputed still leave the inference of negligence in doubt, that question is for the jury. Kenworthy v. Town of Ironton, 41 Wis., 647. §922. Same. The question whether the highway was out of repair hav- ing been fairly submitted to the jury under proper instructions, their finding is conclusive. Hammond v. Town of Mukwa, 40 Wis., 35. §923. Same — planks and rubbish near road. Whether a pile of old planks and rubbish left by the road- side after repairing a bridge was an insufficiency, or defect in the highway, as being an object naturally calculated to frighten horses of ordinary gentleness, held a question for the jury. Laird v. Town of Otsego, 90 Wis., 25. 224 LIABILITY. §924-92:8 §924. Eights of abutter on highway. An abutter on a highway has a right to temporarily use a reasonable portion of the street for the deposit of mortar boxes, etc., while necessarily used in plastering his house. The necessity need not be absolute. It is enough if it be reasonable and the temporary use of the margin of the highway be not unreasonably prolonged. Loberg v. Town of Amherst, 87 Wis., 634. §925. Unreasonable use of highway. The question of reasonable necessity and use is ordinarily one for the jury; but where the facts are not disputed, and no more space was occupied on the margin of the highway than was actually occupied by the two mortar boxes, etc., as in this case, and there was no claim the use was unreasonably pro- longed, the question should not be submitted to the jury to find, perchance, a verdict which would be a denial of the legal right under conceded fases, and which it would be the duty of tlie court to set aside. Id. §926. When not liable as a matter of law— incline in gut- ter crossing. The fact that a storie leading across a gutter from the side- Tvalk into the street had an inclination of about one inch in a foot, and that the sidewalk had an inclination of six inches in the two feet immediately adjacent to such stone does not show any such defect in the street as would render the city liable for an injury alleged to have resulted in part from that fact. Cook V. City of Milwaukee, 27 Wis., 191. §927. Same — defect suddenly caused by the elements. A town is not liable for injuries received by a traveler caused by a defective highway, when such defect was suddenly caused by the action of the elements, unless it had notice of ' the fact, either actual or constructive, and had also time to repair the defect or guard travelers against the danger. Nor is the town liable when the injury resulted from a latent defect, of which it was ignorant, without negligence. Ward v. Town of Jefferson, 24 Wis., 342. §928. Gutter obstructed from natural causes. If a. gutter is left so obstructed as not to carry off water 'flowing there from natural causes, and ice is consequently ] 5 2'2o •§929-933 MUNICIPAL CORPORATIONS. formed on the sidewalk, perhaps the city will be liable for injuries resulting therefrom; but if the gutter is merely insufifi- ■cient to carry off the water caused by pumping a large quantity thereof on the street, or its wrongful accumulation there by other means, the city is not liable unless guilty of some subse- quent negligence in not repairing the walk thus rendered dan- gerous for travelers. Cook v. Milwaukee, 24 Wis., 370. §929. Ice and snow — ^mere slipperiness. If ice or snow is suffered to remain upon a sidewalk in such an uneven or rounded form that one cannot walk over it, using due care, without danger of falling, the city will be hable to a person injured thereby. Otherwise, where the injury resulted from the mere slipperiness of the sidewalk, arising from the smooth surface of ice or snow accumulated upon it. Id. §930. Injuries from coasting on street. For injuries suffered by one passing along or over a public street in a city, caused by collision with persons "bobbing" or "coasting" on such street, the city is not liable as for "insuffi- ciency or want of repair" "of the street, under Sec. 1339, R. S. Schuitz V. City of Milwaukee, 49 Wis., 254. §931. Suppression of coasting. While the use of a public highway in a city for "coasting" may be a public nuisance, its suppression- is a police duty, and not a duty in which the corporation as such has a particular interest, or frojn which it derives any special benefit in its ■corporate capacity; and for the non-performance of such duty by its officers and agents the corporation is not hable. Hayes V. Oshkosh, 33 Wis., 314; Little v. Madison, 42 Wis., 643, dis- tinguished, and the true • ground of the decisions therein stated. Id. §932. Construction of railroad across highway. Where a railway company is constructing its road across a highway, in pursuance of statutory authority, the town is still primarily liaible if it fails to keep the highway safe for pub- lic ti'avel, or to use proper precautions to warn travelers of its dangerous condition. Hammond v. Town of Mukwa, 40 Wis., 35. §933. Defective plank near traveled walk. An upturned plank, with nails sticking up in it, lay near 226 LIABILITY. §934-938 the sidewalk, and plaintiff, while crossing the street, stepped on a nail, and was injured so that death resulted. Held, the town was liable, although the plank was not attached to nor constituted a part of the sidewalk, but was so near the traveled portion of the walk as to endanger travel thereon. Fitzger- ald V. Berlin, 64 Wis., 203; Hay v. Weber, 79 Wis., 590; Pit- tenger v. Town of Hamilton, 85 Wis., 356. §934. Street commissioners agents for city. The street commissioners of a city, though appointed respectively for the several wards of the city, are agents of the ' city for whose default in maintaining highways it is responsible. Kittredge v.. City of Milwaukee, 36 Wis., 46. §935. When town bound to keep side track in repair. I A town may, by long acquiescence in the use of a side track by the public, as a part of the traveled highway, become bound to keep, the same in repair as a part thereof, although it has provided another sufficient track for such travel. Cart- right V. Town of Belmont, 58 Wis., 370. §936. Change in line of travel. Changes or encroachments in the line of travel at points other and distant from the point of the accident do not prevent the road becoming a public highway by user at the latter point. Hart V. Town of Red Cedar, 63 Wis., 634. §937. Husband and wife — recovery for wife's services. Sec. 120, Ch. 19, R. S., provides that "if any damage shall happen to any person, his team, "carriage or other property, by reason of the insufficiency or want of repair of any road in any town in this state, the person sustaining such damages shall have a right to sue for and recover the same against such town." Held, that a married man may recover under this statute for loss of the services of his wife, and expenses of her sickness, resulting from an accident caused by a defective high- way. Hunt V. Town of Winfield, 36 Wis., 154. §938. Same — same. In an action by husband and wife for injuries to the latter by reason of tihe insufficiency of a highway, recovery cannot be had for the loss of her services, nor for the husband's expenses for nursing and medical attendance. If recovery can be had under our statute for such loss and expense (which is not here 227 •§939"944 MUNICIPAL corporations. decided), it can only be in an action by the husband alone. Kavanaugh v. City of Janesville, 24 Wis., 618. §939. Pure accident. In an action for an injury alleged to have resulted from a defective highway there was evidence from which the jury might have found the alleged hole in the highway not to con- stitute a defectj but that the road was reasonably safe and con- venient for public use and that the injury to plaintifif was the result of pure negligence and the court above, under such cir- cumstances, will decline to reverse the order of the trial court, refusing a new trial. Chappell v. Town of Oregon, 36 Wis., 145. §940. ^Same. Some cases of accidental damage the law regards as mere misfortune or pure accidents, in respect to which no negligence or other fault is imputable to any person. Id. §941. Nonfeasance of officers. A city is not liable for mere nonfeasance or omission on the part of its officers in respect to their police duties. Schullz v. Milwaukee, 49 Wis., 354; Little v. City of Madison, 49 Wis., 605. §942. Neg^ligence of firemen. A city is not liable for the value of property destroyed by a fire which is caused by negligence in working a steam fire engine belonging to such city, such engine being at the time engaged in extinguishing a fire; and being under the control and management of engineers employed and paid by the city. Hayes v. City of Oshkosh, 33 Wis., 314. §943. Negligence of agents — public officers. A municipal corporation is liable for the negligence of an agent who is specially employed for the performance of special services on behalf of the city, and not acting as a public officer. Mulcadms v. City df Janesville, 67 Wis., 24. §944. Disposal of garbage — independent contractor — respondeat superior. One who enters into a contract with a city for the disposal of its garbage in Lake Michigan at not less than 15 miles dis- tance from such city, and by which contract thdre is reserved to the city the right to suspend the work, and relet it, in case 228 LIABILITY. §945-949^ of "improper or imperfect performance," but which reserves no power in the city to control the mode or manner of its per- formance, or the place where the garbage should be dumped, is an independent contractor for whose negligence or wrongful' acts in so dumping the garbage that plaintiii's fishing nets were injured thereby, the city is not liable. The doctrine of respondeat superior does not apply. Kuehn v. City of Mil- waukee, 93 Wis., 363. §945. Same — liability of city — public service. In such case, the corporation is engaged in the performance' of a public service, in which it has no particular interest, and. from which it derives no special benefit or advantage in itss corporate capacity, and which it is bound to see performed for the general welfare of the inhabitants or of the community. Id. §946. Nuisance — liability of city for improper carrying on of business licensed by it. A license to carry on a business generally within the limits of a city will not be construed as a license to carry on the business in an improper manner, or at an improper place, and the city is not liable for damages resulting from the improper place or manner in which licensee carries jt on. Hubbell v. City of Viroqua, 67 Wis., 343. §947. Same. , A shooting gallery erected in a proper place and. conducted, in a proper manner is not a public nuisance. Id. §948. Negligent construction of private sewer. A city is not liable for the damages resulting to a house owner for the negligent construction of a connection between a private sewer and the main public sewer, it not being an act within the line of a corporate duty to make such connection;, although made voluntarily by the board of public works of said city, and without plaintiff's knowledge. Streifif v. City of, Milwaukee, 89 Wis., 318. §949. Nuisance — obstructing flow of water. If a city, in causing a sewer to be constructed in a street by its officers or agents, knowingly permits earth, etc., to be placed in the street unnecessarily, or to remain for an unnecessary length of time, so as to obstruct the proper flow of water in 229 §950-953 MUNICIPAL CORPORATIONS. the gutters, such obstruction is a public nuisance, and the city- is liable to an adjoining owner for injuries done to his property by an overflow of water caused by such obstruction. Harper V. City of Milwaukee, 30 Wis., 365. §950. Same — same — independent contractor. The fact that the sewer was being constructed under a con- tract will not relieve the city from liability, if the contractor acted as its agent and subject to its control as to the manner of performing the work. But if the work is done under a lawful, independent contract, the city retaining no control of the mode of performing the work, the contractor alone is liable. Id. §951. Ice^fire engine pumping water on street. The mere fact that in consequence of the permitted pump-- itig of water upon a city street by a fire engine, ice formed upon the street and sidewalk, and that plaintifif was injured by slip- ping thereon, would not render the city liable, it not appearing that the engine was not being used for a lawful purpose. Cook V. City of Milwaukee, 27 Wis., 191. §952. Nuisance — ^when action will not lie. An action will not lie against a municipal corporation for not suppressing a public nuisance within the municipality, when such nuisance is not created or maintained by the express liuthority of the municipality, and when such public nuisance is not the result of some act done, or neglected to be done, in the performance of a duty imposed upon the municipality by law, such as repair of streets, constructing sewers, water or other public works. Hubbell v. City of Viroqua, 67 Wis., 343. §953. Same — public, caused by private citizens — ^responsi- bility. When a public nuisance is created by a private citizen in carrying on his business or trade within a city or other munici- pality, unless the municipality by express license authorizes such business to be carried on at the place and in the manner the same as conducted by such private citizen, the municipality cannot be held responsible for any damage which may result to another citizen from the existence or maintenance of such nuisance. Hubbell v. City of Viroqua, 67 Wis., 343. 230 LIABILITY. §954-959 §954. Object of statute — liability. The object of Sec. 30, Ch. 401, P. & L. Laws of 1869, is to relieve the city from the statutory liability for injuries to travelers. Harper v. City of Milwaukee, 30 \Vis., 365. §955. Nuisances — contracts. Where by a city charter, the board of public works has full control of the mode of performing public work by a contractor, and is required to reserve in the contract the right to finally determine all questions as to the proper performance thereof, and in case of mis-performance, to order a reconstruction of said work, or relet it to some other party, under such contract the city is liable for injuries resulting from the negligence of the contractor, as a principal is liable for his agent, except as exempted by statute. Id. §956. Same — ^right to maintain. In general, a municipal corporation has no more right than a natural person to create and maintain a nuisance, and is liable for injuries occasioned thereby in any case where a private person would be liable under like circumstances. Id. §957. liability by statute — travelers. The sta:tute (Taylor's Stats. 513, Sec. 156) which makes towns liable for damages to persons or property caused by the insufficiency or want of repairs of a highway, relates only to damages sustained by a traveler using the highway as such, and not to damages caused to adjoining property by the over- flow of water due to an obstruction in the highway. Id. §958. Approach over navigable river — negligence in man- aging draw. The only right which a town or village in this state has to maintain a bridge over a navigable river is conditional that a draw be constructed in the same and opened when the river at that point should be required for the navigation of boats and vessels. When this duty was neglected, then the bridge became and was a complete obstruction tO' the navigation of the river, and the town was responsible therefor, and for all .special damage occasioned thereby. Weisenberg v. Town of Winneconne, 56 Wis., 667. §959. User. Under Sec. 80, Ch. 16, Taylor's Stats, a road not recorded 231 §.960-964 MUNICIPAL CORPORATIONS. is deemed a public Iiighway after ten years' use. Hart v. Town of Red Cedar, 63 Wis., 634. §960. Barbed wire fence. Wliere a town has allowed a barbed-wire fence, practically imperceptible in the night time, to be placed across a discon- tinued highway as a notice to persons not to travel the same, such notice is not only an utter failure, but exposes travelers to great and positive danger of injury to person and property, and the town is guilty of negligence. Bilk v. Town of Kau- kauna, 94 Wis., 310. §961. Crosswalk over gutter — what not an obstruction. A road had been heavily turnpiked, so that between the traveled track and the sidewalk there was a ditch or gutter 8 or 10 feet wide, shallow near the road and deepening towards the sidewalk, where it was 3J^ to 3 feet deep, and was filled with water much of the time. A crosswalk substantially in the nature of a bridge over the ditch, had been built for crossing purposes. It was substantially like crosswalks over gutters in cities, and left unobstructed the traveled portion of the road, which was wide enough for three wagons abreast. Held, no obstruction. Loberg v. Town of Amherst, 87 Wis., 634. §962. Injury from exploding firecracker — mob or riot — construction of statute. For a person injured by one of a crowd gathered together to have a right of action under Sec. 4511, R. S.,. providing ■ that if three or more persons assemble in a violent and tumultu- ous manner to do an unlawful act, they shall be deemed guilty of a riot, the three or more persons must have a common pur- pose to do the act complained of, or they are not guilty of a riot. Aron v. City of Wausau, 98 Wis., 592. §963. Same — same — same. Where plaintiiif was injured on the evening of July 4th by an exploded firecracker thrown by an unknown person from the midst of a crowd, there is no remedy for plaintiff in an action against the municipality under Sec. 938, S. & B. Am. {Stats., giving a remedy to the person injured, in consequence of a mob or riot, where the plaintiiif is not implicated therein. I A §964. Estoppel. As to matters within the scope of their powers, and the - 232 TRAVELERS DUTIES AND LIABILITIES. §965-970 powers of their officers, municipal corporations may be estopped laiider the same circumstances and upon the s^ame principles as natural persons. Kneeland v. Oilman, 34 Wis., 39, 42. §965. Powers of municipal officers. The establishment and maintenance of public roads and bridges within a town, including the adoption of those already opened or erected, are matters within the scope of the general powers of the town and its officers. Houfe v. Town of Fulton, 34 Wis., 608. §966. Action is purely statutory. The action for personal injuries is purely statutory. No such action would lie at common law. Stilling v. Tqwn of Thorp, 54 Wis., 538. §967. Action in name of town. Where a bridge within the corporate limits of a village was built and had always been maintained by the town, an action for an injury to the bridge was- properly brought in the name of the town. Town of Menasha v. The Steam Tug Portage, 26 Wis., 535. g. Travelers — duties and liabiiities. ' §968. Care required of. A traveler on a highway is only bound to exercise ordinary ■care and circumspection, according to the circumstances of the case, to avoid injuries from defects in such highway, and he need not show such care as men of great caution would have exercised!, in order to- entitle himself to recover for inju- ries received in consequence of such defects. Houfe v. Town of Fulton, 29 Wis., 296. §969. ^ Warning to. It is not the duty of the town to warn travelers of dangers not contiguous to the highway, but distant from it. Green v. Town of Bridge Creek,- 38 Wis., 449. §970. Purpose of. Where a person is intending and attempting to cross a bridge, the ulterior purpose of such traveler cannot afiEect his right to have the bridge in a reasonably safe condition for use. Strong V. City of Stevens Point, 62 Wis., 255. 233 §97 1-974 MUNICIPAL CORPORATIONS. • §971. Who are not — deviating from track. A certain part of a highway in the defendant town was defective from the absence Of any guards where an excavation had been made on one side thereof; but plaintiff, before reach- ing this point,. purposely left the traveled way to walk around the excavation by a route which she knew would lead her some rods from the limits of the highway before returning within them; and she received her injuries after thus leaving the highway, and at a point outside of its boundaries. Her departure from the highway was not from any necessity, but merely because "the wagon track was muddy and slippery, and the turf was pleasanter walking!" Held, upon this evi- dence, as a matter of law, that plaintiff, at the time of the acci- dent, was not a traveler on such highway, so as to make the town liable. Hawes v. Town of Fox Lake, 33 Wis., 438. h. Frightened horses. §972. Kunaway horses — duty of municipality as to. It is not the duty of towns to provide roads which shall be safe for runaway or unmanageable horses, or such as have escaped from the control of their drivers without the fault of tlie towns, and. where injuries are sustained under such circum- stances, it appearing that otherwise they might not have been sustained, the loss must fall upon the owners whose misfortune, if not whose fault, it is that they have happened. Jackson v. Town of Belleview, 30 Wis., 250. §973. Same. Where injuries to a horse and vehicle occiir at a point in the highway where it is defective, the owner cannot recover if the horse was in a condition' of flight and uncontrollable, such condition not being caused by any defect in the highway, and it appearing that if the horse had been controlled, and driven with ordinary care and skill, the injury would not have hap- pened. Houfe V. Fulton and Kelley v. Fond du Lac, 29 Wis., followed. Id. §974. Same — ^proximate cause. In an action against a municipal corporation for injuries causing death, the evidence showed that the horse, while being driven by the companion of the deceased, got beyond the con- trol of the driver and while so beyond control, ran into a street 234 FRIGHTENKD HORSES. §975-979 railway pole in the middle of the street, throwing the parties' from the buggy, whereby the deceased received the injuries resulting in death. Held, that the running away of the horse was the proximate cause of the injury, and not the obstruction in the street. Ritger v. City of Milwaukee, 99 Wis., 190. §975. Same. Where -a team, having broken away from the vehicle to which it was attached, and from the driver's control, and being in a state of fright, das'hed against trees standing in the high- way, and one of the horses was killed, if it appears, in an action for such damages, that the fright and flight of the team were caused by a defect in the highway (the plaintiff not being in fault), the question whether the presence of such trees in the highway was also a defect is immaterial. Kelley v. Town of Fond du Lac, 31 Wis., 179. §976. Same. A horse is not to be considered uncontrollable that merely shies or starts or is momentarily not controlled by his driver. Hein v. Village of Fairchild, 87 Wis., 258. §977. Same. When a gentle horse becomes more than momentarily uncontrollable through fright caused otherwise than from a defect in the highwa.y, and while in that condition comes in contact with a defect in the highway, thereby causing injury to the horse and driver, the town is not liable. Schillinger v. Town of Verona, 96 Wis., 456. §978. Same — obstruction in street — nonsuit. Where, in an action against the city for damages resulting from an obstruction in the street, the evidence was clear that the driver of the vehicle in which deceased was ridin"g had lost control of a runaway horse at the time of the injury by striking an obstruction in the street, and there was no inference from the evidence which would support a verdict for the plaintifl, a nonsuit was properly directed. Ritger v. City of Milwaukee, 99 Wis., 190. §979. Same — no recoVery for injury to. There can be no recovery against a town or city in conse- quence of injuries sustained by reason of a runaway or uncon- trollable horse. Jackson v. Town of Belleveiu, 30 Wis., 250; 235 §980 MUNICIPAL CORPORATIONS. Bishop V. Belle City R. Co., 92 Wis., 139; Schillinger v. Ver- ona, 96 Wis., 456; McFarlane v. Town of Sullivan, 99 Wis., 301; Ritger v. City of Milwaukee, 99 Wis., 190. §980. Same. If a town be not liable for an accident caused to a horse in a condition of flight or unmanageableness, by a defective high- way, such exception does not include cases where a horse merely shies or starts, or is momentarily not controlled by the driver. Houfe v. Town of Fulton, 29 Wis., 296. \ 236 CHAPTER VI. NEGLIGENCE IN RELATION OF MASTER AND SERVANT. a. In general, b. Negligence, c. Contributory negligence, d. Appliances and machinery, e. Assumption of risk. f. Fel- low servants, g. Agency, h. Vice-principal, -i. Dangerous place, k. Miscellaneous. a. In general. §981. General rule as to master's liability. A master is liable for injuries suffered by his servant, wiiere, Dy his own negligence or malfeasance, he has enhanced the risk to which the servant was exposed beyond the natural risk of the employment, or has knowingly, and without informing the servant, used defective machinery which has caused the injury. Wedgwood v. Chicago & N. W. R. Co., 41 Wis., 478. §982. Duty of masters-safe appliances — safe place. It is the duty of the master to furnish the servant with rea- sonably suitable and safe means and appliances for doing the work which the servant is required to do, as well as a reason- ably safe working place; and where the master has charge of the work himself he is guilty of negligence if defective appli- ances are furnished or th,e structure is built in an unsafe man- ner. Kaspari v. Marsh, 74 Wis., 563. §983. Same — safe place. It is the duty of the master or employer to furnish his serv- ant or employee a reasonaibly safe place in which to perform his work, and suitable and reasonably safe instruments with which to j^erform it. Goff v. Chippewa River & Men. R. Co., 86 Wis., 237. §983a. Same — same. The employer is responsible only for his express or implied instructions to an employee to work in an unsafe or dangerous place, and the employee cannot of his own mere unauthorized motion take the risk, and hold the employer liable for disastrous consequences. Id. §984-987 MASTER AND SERVANT. §984. Same — ^precautions to prevent injury. The master is required to furnish the servant with proper and suitable tools and instruments for his use and a 'safe and proper place in which to perform his work, and while requiring the performance of work by a servant in a place which may be or has become dangerous and such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger, that is to say, such as may be avoided by the exercise of reasonable care and caution on the part of the master. Promer v. Milwaukee, L. S. & W. R. Co., 90 Wis., 315; Bessex v. Chicago & N. W. R. Co., 45 Wis., 481, 482; Kelleher v. Milwaukee & N. R. Co., 80 Wis., 584, 588; Smith V. Chicago, M. & St. P. R. Co., 42 Wis., 520. §985. Same. It is the duty of the master to provide a reasonably safe place for the servant to render his services in, and to construct the appliances so they will be reasonaibly safe for the plaintiff's use. Welty v. The Lake Superior T. & T. Co., 100 Wis., 128. §986. Same — failure to instruct — ^inexperienced servant. Although a danger may exist, yet it does not follow that it is the duty of the master to instruct an inexperienced servant in' regard to it, unless it was reasonably to be apprehended that the circumstances requisite to set that danger in motion might probably occur. Id. §987. Duty of master and of servant. While the master must furnish a reasonatly safe place for his servants to work in, the employer has the right to expect that the employee will use ordinary care to examine his sur- roundings ; that he will see the dangers that are patent to ordi- nary sense and prudence to avoid such dangers. If there are latent dangers, over patent dangers, known to the master, or of which he ought to know, and which the employee, on account of age, want of skill or otherwise, does not know or is not pre- sumed to understand and appreciate, it is the duty of the master to instruct him in regard thereto; but if the servant in fact knows or ought to know and appreciate such dangers, it is not material that the master does not instruct him on the subject. Jones V. Sutherland, 91 Wis., 587. 238 IN GENERAL. §988-99oa §988. Duty of master to servant. The company owed a duty to its employee to keep in proper repair the engine used to propel the train on which the latter was employed, and the negligence of the foreman, to whom notice of the defect was given, and whose duty it was to repair it on receiving such notice, was the negligence of defendant. Brajbbits v. Chicago & N. W. R. Co., 38 Wis., 289. §988a. Same. In deciding this case on common law principles, the cases sustaining those views are more readily followed because they accord with the policy of this state as declared and established by Ch. 173, Laws of 1875, since the cause of action herein accrued. Id. §989. Shift boss in mine — taking servant from one place to another. Where in a mine, the shift boss takes a person from one place where he had been at work, and sets him at work at another, he is clearly acting in the capacity of master. And where the shift boss, knowing of the existence of a concealed and terrible danger in the place, of which he did not inform the plaintifif, and the latter could not, in the exercise of ordinary care, ascertain its existence, the master is liable for any inju- ries caused thereby. McMahon v. Ida Mining Co., 95 Wis., 308. §9?0. Duty to give warning — exposure to infectious dis- ease. If a servant is exposed by his master without warning to an infectious or contagious disease, and thereby contracts the disease, he being ignorant of the danger, and unable to know of it by the exercise of ordinary care, the master is liable if he either knew, or in the exercise of ordinary care ought to have known, of the danger. Kliegel v. Aitken, 94 Wis., 432. §990a. Same — ^ignorance or inexperience of plaintiff. The mere fact that the plaintifif was injured because he was inexperienced and ignorant of the danger and hazard of his employment would not be sufficient to charge the defendant with negligence unless he knew or ought to have known of some occasion for information or instruction on such point Klochinski v. Shores Lumber Co., 93 Wis., 417. 239 §991-995 MASTER AND SERVANT. §991. Same — vice-principal. The superintendent and manager of defendant's saw mill, who took hold as a volunteer to do the work of one just dis- abled, and who called on the plaintifif to assist him, is a fellow servant of plaintiff in the performance of sudh work, and what- ever orders or' directions he gave plaintiff, while so working, must be regarded as the order or direction of a co-employee or fellow servant and not of a vice-principal. Klochinski v. Shores Lumber Co., 93 Wis., 417. §992. Same — same. But if such superintendent negligently and Improperly directed the plaintifif to work without giving him necessary or proper warning or instruction as to the danger and hazard of the work, and for the lack of which plaintiff got injured, this must be regarded as flhe negUgent act of the defendant, for which it would be liable. Id. §993. Negligence of engineer — ^injury to brakeman coup- ling cars. In an action against a railway company, plaintiff,, a brake- man, was injured by cars which had been detached from engine, coming against the cars he attempted to couple them to, at such a high rate of speed that he was injured. The head brakeman failed to get upon the cars and ride them down, so as to control their speed by the use of the brake. If such omission was negligence, it was the negligence of a co-em- ployee, for which there could be no recovery. Lagage v. Chi- cago & N. W. R. Co., 91 Wis., 507. §994. Same — ^uncovered saw. Where it' is the master's duty to caution employees as to the dangers and risks of their employment, the question as to their duty in guarding machinery so as to prevent accident is ordinarily for the jury. Egan v. Sawyer & Austin Lumber Co., 94 Wis., 137. §995. Negligence of person employed to give warning. Where the master has employed a competent man for the purpose of giving warning to empiloyees of any danger about the premises and such employee neglects to give such warning, and one of the employees is injured by the negligence of such person to give such warning, the master is not liable. Promer 240 IN GENERAL. §996-999 V. Milwaukee L. S. & W. Co., 90 W!is., 215, distinguished; Portianoe v. Lehigh Valley Coal Co., 101 Wis., 574. §996. Failure to warn — ^injury to minor employee. In an action by a minor plaintiff, an employee in a saw mill, ' and of considerable experience, for injuries caused by his hand coming in contact witlh a rapidly revolving saw extending about three inches above a table, the evidence showed the saw was then in use, that sawdust accumulated around it when it was idle, and that plaintiff did not know of its presence. The question as to whether plaintiff should have been warned of the presence of the saw and the danger that it might cause was 'for the jury. Egan v. Sawyer «& A. Lumber Co., 94 Wis., 137. §997. Continuing at work after notice of defect. Plaintiff, an employee in defendant's shops, was injured by reason of the sudden and unexpected starting of a lathe after he had stopped it. The clutch attached to shaft from which the lathe was driven was out of repair and could not be discon- -•nected by means of the lever so as to stop the running of the belt. With knowledge of the defect, plaintiff had continued to work at the lathe for several weeks before he was injured; but h* alleged that defendant had from time to time promised to remedy the trouble, and that he had continued at the work of relying on such promises. A finding of the jury that plaintiff did not continue operating the lathe longer than a reasonable time after he knew of the defect as it then existed, is held to be sustained by the evidence. Ferriss v. BerHn Machine Works, 90 Wis., 541. §998. Servant does not assume risk of negligence in '«thers. The servant of a railway company does not, in undertaking the business, assume the risk of negligence in others, as well as'thie risks of the employment. 'He does not contrs'-t w'th 'reference to any iniuries inflicted on him bv negligence. C':am- 'b-efhin V. Milwaukee & Miss. R. Co., 11 Wis., 238. §999. Knowledge of danger— contributory negligence. In an -action against a railway company for injuries caused by the, plaintiff (a brakeman) falling over a log of wood negl'i- ,,gently left near defendant's track, the fact that h6 had knovfrl- edge of the 1 neglect of defendant to keep its track clear about 16 -211 §1000-1003 MASTER AND SERVANT. its wood-yards, is not coriclusive that he assumed all risk from such neglect of the company, and especially so when he did not know of the existence of the wood lying along the side of the track at the place where he was injured, but it is a ques- tion for the jury whether he was guilty of negligence in remain- ing in the employ of the defendant after such knowledge. Hulehan v. Green Bay, W. & St. P. R. Co., 68 Wis., 520. §1000. Same — burden of proof. The burden is upon the defendant to show that the plain- tiff assumed the risk growing out of certain obstructions on the track by remaining in its employ after having knowledge of the same. Id. §1001. Cattle-shute. 'The jury found specifically that plaintiff neither knew nor had means of knowing "the existence and location of the cattle- shut^ in question.'' It was held that the words existence and location must be taken to refer to the exact location or distance from the track; and the verdict for plaintiff is sustained by the evidence, although plaintiff admitted his knowledge of the existence of the aattle-shute. Dorsey v. Phillips & C~ Con. Co., 42 Wis., 583. §1002. Notice of dangerous custom. It is not negligence per se to load a tender with coal above the level of its top, and the mere fact that the defendant had knowledge of a custom among its employees to so load the tenders, is not enough to charge it with liability for an unex- pected' accident resulting therefrom, unless it also had knowl- edge that such custom was dangerous. Schultz v. Chicago & N. W. R. Co., 67 Wis., 616. §1003. Same — revolving fan in drum — ^loss of finger. In an action by a servant against the proprietor of a paper mill it appeared in evidence that the plaintiff lost the fingers of one hand by having them brought in contact with a fan revolving at a very high rate of speed in an iron drum or cylinder. The plaintiff had worked in this particular mill for a few months and in other mills for about two years, and was about 18 years of age. While, engaged in his duties in the neighborhood of such revolving fan and knowing that said 242 NEGLIGENCE. §1004- 1 006 fan was in operation, in, some manner he caught his fingers in the fan through an opening in the drum, which he might have seen, had he looked, and which was at a distance of several feet from the place where he was working. There was no connection between the drum and the screens at which he was working, and the fan was not dangerous to him while per- forming his duty. He did not know of the opening in the drum and did not know whether the fan revolved inside thereof and had not been warned of any danger. Upon this state of facts a nonsuit was properly directed, there being no evidence of the negligence of defendant^ and whether or not the openipg was protected makes no difference in the result. Nadau v. White RiVer L. Co., 76 Wis., 120, distinguished; Schiefelbein V. Badger Paper Co., 101 Wis., 403. b. Negligence. §1004. Essential test of, in relation of master and servant. It is an essential test of actionable negligence that the defendant, or his offices and agents whose duty it is to act in his behalf, in the exercise of ordinary care ought reasonably to have apprehended that some person, using the appliance in question, might be injured as a natural and probable result of its condition. Borden v. Daisy Roller Mill Co., 98 Wis., 407. §1005. Empty car on side track— moving same. An empty freight car, standing alone on a level side track, was in some manner moved on to the main track so as -to obstruct it, causing a collision with a passing train, and injuring a brakeman. The evidence showed that the brakes had been properly set; that another train passed in safety a little more than an hour before; that the night was stormy and a very- high wind blowing, thus c-ausing the reasonable inference that the wind was the motive power which propelled the car to the main track. A finding by the jury that the defendant's station agent might, by the exercise of reasonable care, have dis- covered the position of the car in time to prevent the collision, was unwarranted. Tower v. Chicago, M. & St. P. R. Co., 69 Wis., 188. §1006. Same— right of action from. Ordinary negligence by one person, proximately causing personal injuries to another, to whom the first owes a duty of ^43 §1007-1010 MASTER AND SERVANT. rare, raises a right of action in the person injured. Eingartner V. Illinois Co., 94 Wis., 70. §1007. Negligence causing death — falling of scaffold. In an action to recover damages for death of plaintifFs husband, caused by the falling of a scaffold built by deceased while working for the defendant, the evidence showed that the scaffold was not safely constructed, the nails being too few and too small; that defendant was a skilled carpenter, and knew that deceased was not; that the defendant gave specific instruc- tions to deceased as to how the scaffold should be built, and aided and supervised its construction. Held, sufficient to war- rant a finding that defendant was negligent either in not fur- nishing proper nails, or in causing the scaffold to be constructed in an unskillful and improper manner. Kaspari v. Marsh, 74 Wis., 563. §1008. Engineer on duty forty-four hours. In an action by a locomotive engineer against a railway company. for personal injuries and where there was a question as to plaintiff's negligence in not comprehending a new time table, the fact that the plaintiff was continuously on duty with his locomotive for forty-four hours, excepting a three hour intermission during severe weather, and that he had applied to be relieved from duty on the night of the accident, for the reason that he was not feeling well, are questions that should have been submitted to the jury. Nelson v. Chicago, M. & St. P. R. Co., 60 Wis., 330. §1009. Question for jury — projecting bolt in brake-beam. The question of defendant's negligence was properly sub- mitted to the jury upon evidence that a bolt in the brake- beam of one of its cars projected unnecessarily for a consid- erable distance, so as to be in the way of a brakeman coup- ling such car to another, and that the injury complained of, received by plaintiff while coupling for defendant, was caused by such projection. Wedgwood v. Chicago & N. W. R. Co., 44 Wis., 44. §1010. Same — same — removing ashes from side track. Where a railroad employee, engaged in . removing ashes, 'etc., frbth a side track, in depot grounds, was injured 'by a tfain set off upon said track; held, in an • action against the 244 CONTRIAUTORY NEGLIGENCE. §,I O I I - 1 1 4 railroad company for the injury, that plaintiff had a right to act upon the belief that such train would, be operated and run there; and where th^re was proof that the bell was usually rung before starting a train at that place, and no proof that trains were run there habitually at an unlawful speed, -and there . was eyidence tending to show that the train in question was run at an unlawful speed, and without ringing the bell at starting or giving the plaintiff other warning, the question of defendant's negligence was for the jury. Schultz-v. Chicago & N. W. R.,Co., 44 Wis, 638. §1011. Si^mje— construction of statute. In an action against employer for injuries received through, its alleged negligence in not covering or guarding a set screw on which plaintiff was caught, the question as to whether the same should have been covered or guarded depends on whether it was "so located as to be dangerous to employees when engaged in their ordinary duties" (S. & B. Ann. Stat., Sec, 1636f, Subd. 2), and that is a question of fact for the jury. Guinard v. Knapp-Stout & Co. Co., 95 Wis., 482. §1012. Injury to servant by his own negligence. Plaintiff was injured by the fall of a portion of a scaffolding upon which he and others were at work. He was a carpenter of considerable experience and had himself constructed accord- ing to his own judgment that part of the scaffolding which gave way. There was no evidence that thp materials fur- nished therefor were defective or unsuitable. Held, that a non-, Siuit should have been granted. Peffer v. Cutler, 83 Wis., 281. c. Contributory negligence. §1013. When question for jury— averment in answer. In an action for personal injuries, wliere the answer averred that plaintiff's injury was caused by negligence on his part con- tributing thereto, and the question of sijch negligence was largely one of inference from the facts in .evidence, the question of plaintiff's contributory negligence should have been sub- mitted to the jury. Dougherty v. West Superior I. & S. Co., 88 Wis., 343. §1014, ^aipe. Plaintiff was put to work by defendant's foreman on a bort 245 §1015-1017 MASTER AND SERVANT. ing machine, and was injured by his sleeve catching and draw- ing his arm between the cogwheels of the machine. There was evidence tending to show that he was without experience on such a machine, without instruction, and without warning, and the question as to his contributory negligence was properly left to the jury. Thompson v. Edward P. Allis Co., 89 Wis., 523; Burnell v. West Side R. Co., 87 Wis., 387, distinguished. §1015. Owners' liability — construction of statutes — cover- ing gearing. Under Sec. 1636f, S. & B. Ann. Stats., providing for the proper guarding of all gearing so located as to be dangerous to the employees while engaged in their ordinary duties, the owner is not absolutely liable, but may set up the defense of contributory negligence. This was so held in a similar statute relating to the fencing of railways (Curry v. Chicago & N. W. 43 Wis., 665). Thompson v. E. P. Allis Co., 89 Wis., 523. §1016. Personal injuries — saw-mill. Plaintiff, a man 30 years of age, and who had worked in and around sawmills more or less for upwards of ten years, was directed by the foreman of defendant's sawmill to oil the shaft of the lower wheel of a band saw. The wheel was boxed, and plaintiff had never been down into it before the injury, but had frequently seen the person whose duty it was to oil the shaft, go down for that purpose. Plaintiff was injured by slipping on the slanting bottom of thp box and striking against the saw. He must have known the bottom necessarily slanted, but it was covered with saw dust at the time, and looked level, and he paid no attention to where he stepped. Held, guilty of contributory negligence. Jones v. Sutherland, "91 Wis., 587. §1017. Same — same — obvious danger. Plaintifif was a man 30 years of age, with 10 years' experi- ence as a sawmill hand. In putting his hand through a hole in the box surrounding the trimmer, to get hold of the end of a broken chain lying within two or three inches of the saw which was then running, plaintifif was injured by having his thumb and fingers cut ofif by the saw. He did not see the saw, but knew it was there and running, and knew that his hand would be injured if it came in contact with it. Hefd, guilty of contributory negligence. Schultz v. C. C. Thompson L. Co., 91 Wis., 626. 246 CONrRIBUTORY NEGLIGENCE, §IOl8-I022 §1018. Same — ^master's assurance of safety. The mere fact that the plaintiff had, the spring before- remonstrated against the saws being boxed up as they were, and had been assured that they were all right as they were, did not excuse plaintifif from exercising ordinary care to avoid danger. Id. §1019. Co-employee — ^liability of defendant. Plaintiff was injured while emptying a pulp digester in defendant's mill. It was customary to use cold water to cool the pulp in the digester before emptying it, but on the occasion in question, the use of cold water was omitted at plaintiff's request. He knew the use of cold water was part of the process and must be deemed to have known the danger arising from its omission. The accident was due either to the contributory negligence of plaintiff, in asking the cold water to be omitted, or the negligence of plaintiff's co-employee in not turning on the water, and a verdict for plaintiff cannot stand. Berlick v. Ashland S. & F. Co., ,93 Wis., 437. §1020. Defective tool. Plaintiff, a mechanic of 30 years' experience, was injured while attempting to move a locomotive with a pinch bar. The bar used was picked up by him in the roundhouse, and used without inspection. After the accident, he found the heel had become dull from use, so as to slip easily. It did not appear but that there were other and safe pinch bars in the round- house. The plaintiff had the right to call men to move the locomotive. Plaintiff was guilty of contributory negligence. Holt V. Chicago, M. & St. P. R. Co., 94 Wis., 596, §1021. Unsafe place. -The place where plaintiff was to work was shown him by defendant's foreman, but from a, point where the gears that caused the accident, could not be seen. Plaintiff worked for five days before the accident, and testified that he did not know of the existence of the gearing until he was caught by it and injured. Held, question of contributory negligence for jury. Nadau v. White River Lumber Co., 76 Wis., 120. §1022. Unsafe appliances. The complaint alleged that for several years the plaintiff had been in defendant's employ, in making general repairs, and while so employed was occasionally required by defend- 247 §1023-1025 MASTER AND SERVANT. ant's foreman to ascend a ladder for the purpose of repairing, or cleaning, a condenser, and that he told said foreman the ladder was not safe or secure; that the foreman promised to have a safe ladder procured in case he was required to do such work again; that relying upon such promise, and not knowing whether he would be required to do such work at all, he con- tinued in defendant's employ; that thereafter he was again ordered by foreman to ascend a ladder for the purpose of, clean- ing out or repairing said condenser; that a ladder was furnished: him which was unsafe and unsuitable, in that the floor was S'lippery with oil and tar, and the ladder had no spikes in the end thereof resting on the floor; that th& plaintiff was injured' by the falling of said ladder while he was ascending it. Upon', demurrer, it was held the complaint did not state a cause of action, because the danger w.as obvious, and he, by remaining in defendant's employ, had waived his previous objection and assumed the risk. He was also guilty of contributory negli- gence. Corcoran v. Milwaukee Gas Light Co., 81 Wis., 191. §1023. Imminent peril. Where plaintiff was compelled to act at once in the pres- ence of imminent danger, he cannot be held guilty of contribu- tory negligence as a matter of law, merely because he did not choose the best means of escape from the danger. Schultz v. Chicago & N. W. R. Co., 44 Wis., 638. §1024. Fellow servant — falling lumber. Plaintiff was ordered by the foreman of the defendant to go into a car at Milwaukee to count the number of pieces of a certain kind of lumber therein. The lumber was very icy, and was not braced or shored up, so that a slight jar would cause it to fall. While the plaintiff was between two of the piles in such car, defendant's foreman, knowing the dangerous con- dition of the piles and of plaintiff's employment, carelessly and negligently caused such car to be moved up the track, thereby jarring such piles of lumber so that they fell on and injured' plaintiff Held, that plaintiff was guilty of contributory negli- gence, and that such foreman was a fellow servant of plaintiff; The fact that defendant resides in Michigan does not change the rule. Hoth v. Peters,, 55 Wis.,, 405. §1025. Same. Where the negligence of defendant directly contributes to 248 APPLIANCES AND MACHINERY. §I026-IOJ29> the injury of an employee, the defendant must be held liable, though it also appears that the negligence of a co-employee contributed to the injury. The rule is universal, that contribu- tory negligence, to defeat an action, must be the negligence of the plaintiff, or of some other person for whose acts he id responsible. Stetter v. Chicago & N'. W. R. Co., 46 Wis., 497. §1026. Same — ^injury from defective appliance. Where the master has unnecessarily and by neglect increased the danger of employment by retaining in use a defective machine, he ig liable for the injuries resulting there- from to an eniployee, who is not himself guilty of negligence, an.d. it is no excuse that another employee was careless in the use of the machine, and that with careful handling, the accident would not have occurred. The culpability of defendiant lies in permitting the use of a machine wnich, by reason of its defects, is unnecessarily dangerous. Sherman v. Menomonee River Lumber Co., 73 Wis., 32. §1027. Imputable negligence. Negligence of an employee who had been directed by diefendant's yard foreman to accompany the car, in riding on the rear instead of the front end thereof; so that he could' give no warning of its approach, is to be imputed to defendant, as a failure to perform a duty which it owed the plaintiff. Promer V. Milwaukee L. S. & W. R. Co., 90 Wis., 315. d. A.ppliances and machinery. §1028. Safe appliances — general rule. It is a general rule, applicable to all kinds of service, that a master who negligently fails to furnish his servant with safe machinery, means and appliances foF doing the work required to be done, is liable for injuries to the servant caused by such negligence. Thompson v. Hermann, 47 Wis., 603. §1029. Defective appliances — tests. A railway company, receiving a loaded car from another' company for forwarding, is not bound to apply to it such rigid tests as the law exacts in the process of nianufacture, and may assume that all the parts of such car which appear to be in good condition are in such condition. Ballou v. Chicago,^ M. & St. P. R. Co., 54 Wis., 357.' 249 §1030-1032 MASTER AND SERVANT. §1030. Duty of master. It is the duty of the master to furnish hi,s servant with' reasonably safe and suitable tools and machinery to work with, a reasonably safe place in which to do his work, and reasonably competent and safe co-employees, where co-employees are needed. Ordinary care and prudence in the performance of such duty is personal and absolute, and if its performance be delegated by the master to another, negligence in that regard, by such other, will be imputed to the master. But where the duty has been performed, and a personal injury to an employee, nevertheless, occurs through the negligence of a co-employee, in the use or management of the tools or machinery furnished, or otherwise, the wrong is solely that of such co-employee, and the master is not liable. Jarnek v. Manitowoc C. & D. Co., ' 97 Wis., 537. §1031. Defective appliances — knowledge of defect. Plaintiff was employed by defendant to take apart a steam feed pipe in a sawmill, which was screwed together in sections. While so engaged, and in attempting to separate the last sec- tion from the cylinder, it gave way suddenly, causing the injuries complained of. It was found that the last section had only been screwed in one and a half threads of a screw con- taining ten threads to the inch. There was no evidence tending to show that defendants knew the condition in which the pipe was left, nor anything to charge them with notice. The pipe had answered the purpose for which it was intended, and it was not claimed defendants had employed incompetent work- men to put in the pipe. Held, defendants not liable. Hobbs v. Stauer, 63 Wis., 108. §1032. Same — assumption of risk. In Strahlendorf v. Rosenthal, 30 Wis., 674; Naylor v. Chi- cago & N. W. R.'Co., 53, Wis., 661; Behm v. Armour. 58 Wis., 1, the rule is (laid down and applied) that if a servant, knowing the hazards of his employment as the business is con- ducted, is injured while engaged therein, he cannot maintain an action against his employer for the injuries merely because the business might have been carried on in a safer mode. But if there are increased perils in the business by reason of the use of defective appliances, or otherwise, known to the master, or 250 APPLIANCES AND MACHINERY. §1033-1036 for which he is responsible, and unknown to the servant, if the latter is injured thereby, and is free from negligence, the master is liable. Id. §1033. Same^broken brake-rod. A brake-rpd, after being broken squarely in two, showed an old break running two-thirds of the way through. There' was testimony to the efTect that a crack in the brake-rod two- thirds through this under rod would be discovered by an inspection of the car. The testimony was deemed sufHcient to support a finding that the ordinary inspection of cars in use, in compliance with the rule laid down in Ballou v. C. & N. W. R. Co., 54 Wis., 357, should have disclosed the defect in the brake-rod, and hence that the defendant is chargeable with negligence in not discovering such defect before the accident, and either correcting it or ceasing to use the car. Cowan v. Chicago, M. & St. P. R. Co., 80 Wis., 284. §1034. Same — defective ladder — duty of servant. A servant is not obliged to search for defects in instru- mentalities furnished for his use, but may rely on the duty of the master to see that they are reasonably safe; yet the master may .rely on the duty of the servant to observe all defects and dangers which reasonable attention to the work in hand will generally disclose to a person of ordinary intelligence and experience in such work. Bordep v. Daisy Roller Mill Co.,' 98 Wis., 407. §1035. Same — contributory negligence. In an action for injuries caused by the imperfect placing of a scaffold by defendant's servants, where the evidence showed plaintiff was told by the scaffold builders that it was all right; that he was not present when it was built; that before going upon it he looked down to see if it was all right, and that it appeared to be so, and the injury was caused by its tipping outward instead of inward, which plaintiff could not observe from his point of view, the evidence was sufficient to warrant the finding of the jury that plaintiff was free from contributory negligence. American Steam Barge Co., 88 Wis., 409. §1036. Defective machinery— exposed rotary saw— spe- cial verdict. In an action for personal injuries caused by an exposed 261 §,1037-1039 MASTER. AND SERVANT. rotary saw, the jury found specially, among other things, that a person of ordinary prudence and intelligence, engaged in the operation of defendant's mill, ought reasonably to have, expected that an injury would be likely to occur to a person employed as plaintiff was, by coming in contact with such saw, also, that plaintiff did not know, nor ought he reasonably td have expected, under all circumstances, than an injury would) be liable! to occur to him while performing his duties,' by com- ing in contact with the saw. The question being, not as to whether plaintiff knew, but whether he ought reasonably to have known, the danger, and the jury having been properly instructed as to the meaning of "ordinary care" and "prudence," the answers were not contradictory, and a verdict for the plain- tiff was sustained. Darcey v. Farmers' Lumber Co., 98 Wis., 573. §1037. Bursting of cast-iron bend in Itflow-oS pip§ of boile;^. Plaintiff's irrtestate was killed by the bursting of a cast-iron bend in the blow-off pipe of a boiler. The jury having foiundi that such pipe and bend were constructed of the materials and in the manner usually employed, the defendant was not liable for the accident. Innes v. City of Milwaukee, 96 Wis., 170. §1038. Defective machinery — contributory niCgUgence. Although ^he jury found that plaintiff knew when he stopped the lathe, that it was liable to start voluntarily unless he locked it, that he did not lock it, and that he could have locked it and thus have prevented all danger of its starting, a further finding that he was not guilty of any want of ordinary care in failing to lock the lathe is held to be sustained by the evidence. Ferriss v. Berlin Machine Works, 90 Wis., 541. §1039. Sanie — dearth caused by — elevator cabl?. It appears in evidence that defenda,nt's elevator Ajvas operated by a cable pa.ssing around an uncovered drun;i near the elevato.:^ platform, and that the elevator was managed) by two check ropes near the cabje, so that the plaintiff's intestate, a, boy pJi 16„ might, through mistake or inadvertence, take hold of the cable iiistead of the check line, which, if done near the drum, would put him in peril of having his hand or fingers taken off. Deceased had run the elevator from Monday until Friday, and on the latter day was found dead, jammed up against the ceiling over the space near the elevator shaft, with his head 252 APPLrANCES AND MACHINERY. §I040-I042 near the cable, his hands outstretched, and two fingers cut off. The jury found that the elevator was not a reasonably safe appliance, as respected the person employed to "operate it; that its unsafe cqndlition was the proximate cause of intes- tate's death; that he was not of sufficient age and experience to comprehend the danger of operating said elevator; that he was not guilty of negligence; that he accidentally seized the cable instead of one of the check-ropes, and his hand thereby drawn into the drum around which the cable was coiled; and that defendant was guilty of negligence in permitting or causing said elevator to be used in its business without alteration in the respect in which the same was dangerous to the person operating. Held, evidence sustained such findings. Thompson v. Johnston Bros. Co., 86 Wis., 576. ' §1040. Defective machinery — question for jury. In ah action for personal injuries alleged to have beeh caused by want of repair of the machinery of a power grain 'shovel which plaintif? was operating, the evidence showed the injuries were caused by a defect which had existed so long that defendant might have known of it, and it did not show that plaintiff was guilty of contribvitdry negligence. Held, error to direct Verdict for defendant. Radmann v. Chicago, M. & St. P. R. Co., 78 Wis., 22. §1041. Same — duty tb repair. Under the evidence (tending to show, among qther things, 'that -employees were not allowed to fix their ovm m,achines), it is not error to charge the jury that it was the duty of defend- ant to provide the plaitttiff with tools, appliances, and machinery which were reasonably safe and fit for him to perform the work required of him, and to keep such tools, appliances and machin- ery in reasonably safe and good repair, and that it was not the servant's duty to examine the tools and machinery with which he was required to work, unless it was specially com- mitted to his care. Ferriss v. Berlin Machine Works, 90 Wis., 541. ^ §1042. Same — continuing in service after promise of repair —obvious immediate danger— contributory negligence. ■Aprotest by the employee to continuing in the employment ■•of the master because of the existence of some special risk •253 §1043-1046 MASTER AND SERVANT. attending it, a promise by the employer to remove the danger ' within a reasonable time, and a continuance of such employ- ment In consideration of such promise, relieves such employee from the charge of contributory negligence, if injured because of such danger within such time. But if the danger was obvious, immediate, constant, and the probable consequences the infliction of serious bodily injury upon the plaintiff, then it becomes negligence on his part to rely upon such promise, and remain in such employment. Erdman v. Illinois Steel Co., 95 Wis., 6. e. Assumption of risks. §1043. General rule regarding. A person entering upon an employment in which he was engaged wlien injured, assumes all risk or danger of injury ordinarily and fairly incident to such service. When the danger is alike open to the observation oT all, both the master and the servant are upon an equality, and the master is not liable for' an injury resulting from the dangers incident to the employment. Larsson v. McClure, 95 Wis., 533; Naylor v. Chicago & N. W. R. Co., 53 Wis., 661; Showalter v. Fairbanks, Morse & Co., 88 Wis., 376; Paule v. Florence Mining Co., 80 Wis., 350. §1044. Same. Where the unusual dangers are known to the employee and he voluntarily assumes them, if he is thereby injured he cannot recover on account of his contributory fault even if the master at the same time is guilty of negligence which, without such assumption of risk, woul3 have rendered him liable. Powell v. Ashland Iron & Steel Co., 98 Wis., 35. §1045. Same. An employee of years and experience, knowing the manner in which the work was conducted on the part of the defendant, and the position and condition of the appliances in question, is bound to apprehend the danger. Dugal v. City of Chippewa Falls, 101 Wis., 533. §1046. Definition of. The term "assumption of risk," as used to designate a defense against the employer's fault, covers the subject of one's necessarily subjecting himself to danger not ordinarily incident 254 ASSUMPTION OF RISKS. §1047-1050 to the employment in which he is engaged, but nevertheless exists because of the way the employer sees fit to conduct his buisiness. Powell v. Ashlatnd Iron & Steel Co., 98 Wis., 35. §1047. Dangerous appliance — injury to motorman. Plaintif?, 24 years old, and unfamiliar with machinery, had been placed by defendant on one of its cars to learn his duties as a motorman, and had been employed in the latter capacity for three days. While cleaning a commutator on his car, his right hand and arm were caught and crushed in rapidly revolv- ing gear wheels. It was his duty to frequently clean such com- mutator, and the danger of injury in doing so must have been obvious to a person of ordinary intelligence. Held, one of the ordinary risks of the employment which plaintiff assumed. Bur- neU V. West Side R. Co., 87 Wis., 387. §1048. Printed rules — coupling cars. Where the attention of a brakeman has been called to a printed notice warning him of the danger in coupling cars loaded with lumber which projects over the end of a car, of getting the body or limbs caught between the lumber and the end of the car, no recovery can be had for his death caused by neglecting such warning. He must be deemed to have assumed the risk, such method of loading being common. Nash v. Chicago, M. & St. P. R. Co., 95 Wis., 337. §1049. Caving-in of trench — ^blagting frozen earth. Plaintiff was employed to dig at the bottom of a pit, and was familiar with the kind of work he had to perform. He knew that blasting was resorted to to break down the frozen bank, and had witnessed and understood the effect thereof, and of the danger of the frozen chunks falling to the bottom. He was injured by such a chunk faUing on him. Held, he had assumed the risk. Larsson v. McClure, 95 Wis., 533. §1050. Hand caught in revolving spindle. Plaintiff was injured by having his hand caught in a revolv- ing spindle, driven by steam, in defendant's factory. He was 28 years old, had had considerable experience in the work he was engaged iui and had worked for defendant fifteen months, upon spindles driven by hand power, where the velocity was nearly equal to those driven by steam, and whatever danger or risk there was in the work was open and plain to the most 255 §I05I-IQ5'4 MASTER AND SERVANT. ordinary comprehension. Held, the injury received by plain- tiff was from one of the ordinary risks of the work he was engaged in, and was assumed by him. Dougherty v. West Superior I. & S. Co., 88 Wis., 343. §1051. Servant does not assume risk of carelessness of third person. The servant does not assume the risk of the carelessness of those who were selected by the defendant and undertook to do its duty, even though they were the servants of the same master, not being engaged in a common service or employment. Cadden v. American S. B. Co., 88 Wis., 409. §1052. Obvious danger — contributory negligence. Where the defect or danger is open and obvious, knowledge of it on the part of the employee will be presumed. In such cases the employer may be said to be guilty of negligence in keeping his premises or machinery in a dangerous condition, and that the servant is guilty of negligence in accepting the service or continuing in it, and it becomes equivalent to con- tributory negligence on his part. Whittaker's Smith on Negli- gence, 398. An assumption of risk is in fact regarded as a form of contributory negligence. Darcey v. Farmer's Lumber Co., 87 Wis., 249; Peterson v. Sherry Lumber Co., 90 Wis., 83. §1053. Saw mill — slippery rollers — view obscured by steam. The dangers of working in a saw mill where the steam was so thick as to obscure the vision and thus render it difficult to do the work, and the rollers and other machinery rendered' slippery by reason of the steam condensing and freezing thereon, are so obvious that the head sawyer must be deemed to have assumed the extraordinary risks of his employment, as well as the ordinary ones, and althoug'h such defect and ■ danger exists in consequence of the negligence or default of the employer. Peterson v. Sherry Lumber Co., 90 Wis., 83, and cases cited on p. 93. §1054. Coupling" cars — stumbling over ash pile. Plaintiff was foreman of switching crew in defendant's employ, and Was injured while attempting to make a coupling between cars on a spur track, by stumbling over piles of ashes between the tracks, -and caught between the cars. The aShes 266 ASSUMPTION OF RISKS. §1055-1057 were in heaps from 4 to 8 inches high, covered with ice and snow, and the accident happened on a dark night, when sleet was falling, and plaintiff's duties did not require him to observe the condition of the tracks, and there was evidence that he had never seen the ashes. Held, not chargeable, as matter of law, with contributory negligence, or assumption of risk. Ken- nedy y. Lake Superior T. & T. Co., 93 Wis., 32. §1055. Collision between wild train and hand-car. An experienced section man, riding on a hand-car, was struck by a wild stock train on defendant's road, and killed. There was a dense fog at the time of the collision, and decedent knew he was liable to meet such a wild train at any time. Held, he must be considered, as a matter of law, to have assumed the risks of such collision. Hinz v. Chicago, B. & N. R. Co., 93 Wis., 16. §1056. Test of — and of contributory negligence. The true test as to the assumption of risk by a minor serv- ant, and of his contributory negligence, is not, whether he knew and comprehended the danger incident to his employment, but whether he ought to have known and comprehended it. Klatt V. N. C. Foster Lumber Co., 93 Wis., 623. §1057. Open scuttle — ^injury to stevedore unloading vessel. In an action to recover for personal injuries caused by step- ping into an open scuttle in defendant's barge, plaintiff avers he was engaged in unloading such vessel of a cargo of stove size coal, under contract with the owners. Scuttle holes are necessary in such vessels to facilitate the distribution of cargo, and plaintiff was familiar with the vessel in question, having helped to unload it ten different times. It was in evidence that the scuttle holes around the hatch on the lower deck were all open, as was the hatch, but that the upper hatch was closed, shutting out the light; that the hatches are opened or closed at the request of the stevedores ; that when a vessel is unloading, it is practically under their control. Plaintiff was injured while walking along the lower deck by falling into a scuttle hole, it being dark by reason of the upper hatch being closed. Held, no negligence on defendant's part in leaving the scuttle open or the upper hatch closed, there bein^ no evidence to show any requests were made of defendants to that effect, and that 17 257 §1058-1063 MASTER AND SERVANT. plaintiff, who knew the vessel and that the scuttles were open, assumed the risk of the employment. Kraeft v. Mayer, 93 Wis., 252. §1058. Injury by wild animals in park. An employee who voluntarily enters an enclosure where elks and deer are kept by his emi^loyer assumes the risk of injury by them. Borman v. City of Milwaukee, 93 Wis., 523. §1059. Coal from tender falling on track-walker. Plaintiff was a track-walker in defendant's employ, and was struck by a piece of coat which fell from a tender.^ He saw that the coal on the tender was above the top of it before the train reached him, had seen pieces of coal lying along tiie track, and knew that coal sometimes fell from the tender. Held; that having knowledge of these facts and of the custom of so loading tenders, he assumed the risk of the injury from the coal falling, as one incident to his employment. Schultz v. Chicago & N. W. R. Co., 67 Wis., 616. §1060. Pure accident. In this case, the injury arises from a pure accident, for which no action will lie,. Id. §1061. Falling-in of cistern walls. A common laborer, employed in shoveling earth, inside the walls and at the bottom of a cistern, did not assume the risk iof an embankment of earth falling on him, nor any of the risks of the negligent building of the walls of such cistern, nor from the fact that he was working near it, cannot it be pjesumed he had knowledge of its liability to fall. Mulcairns v. City of Janesville, 67 Wis., 34. §1062. Uncovered saw — narrow passage-way. Where a servant was injured by reason of an uncovered saw, which projected over its frame and partly across a narrow passage-way along which he was obliged to go in tightening and loosening the belt, the unsafe condition was a matter pre- sumably within his knowledge, and he assumed the risk inci- dent to the service. Stephenson v. Duncan, 73 Wis., 404. §1063. Defective stairway — coal dock. Where a stairway built for the use of employees on a coal dock was defective in that it was steep, without a railing, and 258 ASSUMPTION OF RISKS. §1064-1068 had steps at irregular intervals, such defects being obvious, and such stairway had been used once or twice by an employee working on such dock, he was chargeable with knowledge of such defects and assumed the risk of injuries caused thereby. Sweet V. Ohio Coal Co., 78 Wis., 127. §1064. Falling of roof caused by heavy snow. A laborer in -the employ of a banking corporation, who is injured by the falling of a roof upon him through the weight of snow and debris placed thereon by defendant's agents, did not assume the risk of the employment, if he did not know of the hazard of his employment. Johnson v. First Nat. Bk., 79 Wis., 414. , §1065. Trammer in mine — falling of roof. A "trammer," who had been working in a mine for four months, was directed by the captain to temporarily help the miners "fix the roof in the pit — ^take down some ground." He did so, and was injured by a fall of ore. He knew the miners broke the ore down from the roof, back and sides of the mine while tramming the ore, and had seen them blasting. Held, that he must have known of the dangers of this temporafy employment, and by accepting it without objection, he assumed the risk. Paule v. Florence Mining Co., 80 Wis., 350. §1066. Knowledge of employer's rule. One who undertakes an employment with full knowledge of the rules and methods pursued by the employer in the business, cannot recover from the employer for an injury happening in consequence of such methods. Kelley v. Chicago, M. & St. P. R. Co., 53 Wis., 74. §1067. Knowledge of hazards of employment. If a servant, knowing the hazards of his employment as the business is conducted, is injured while engaged therein, he cannot maintain an action against the master for such injury merely on the ground that there was a safer mode for con- ducting the business, the adoption of which would have pre- vented the injury. Naylor v. Chicago & N. W. R. Co., 53 Wis., 661. , §1068. Overturned car — snow bank. Plaintifif, with others, was engaged to use shovels in remov- 259 §1069-1072 MASTER AND SERVANT. ing snpw from defendant's track, and was injured by the car in which he was riding turning over, through being driven with great force into the bank of snow, in the attempt to remove it. From the allegations of the complaint, it appears that the con- ductor and others managing the train were the fellow servants of plaintifif, and that the peril of the car turning over in attempt- ing to pass through a bank of snow was one of the perils of the employment, the risk of which plaintiff assumed, and a demurrer to the complaint should have been sustained. How- land V. Milwaukee L.'. S. & W. R. Co., 54 Wis., 226. §1069. Going under car on side track for repairing. To go under a car for the purpose of making repairs, while such car stands upon a side track which is kept locked, is not, in itself, a dangerous service, like that of going between mov- ing cars to couple and uncouple them, and the like of which the employee assumes the chances and hazards. Luebke v. Chi- cago, M. & St. P. R. Co., 59 Wis., 127. §1070. Cattle shute — knowledge of danger. If plaintiff knew, or ought reasonably to have known, the precise danger to him of the cattle shute causing the injuries, and still continued in defendant's employ, he might be deemed to have assumed the risk; but this consequence of acquies- cence must rest upon positive knowledge, or reasonable means of positive knowledge, of the precise danger assumed, and not on vague surmise of the possibility of danger. In this case, it was for the jury to determine whether plaintiff had, or should have had, sudh knowledge. Dorsey v. Phillips & C. Con. C, 42 Wis., 583. §1071. Caution to be observed by servant. One who engages in the service of a railroad company, takes upon himself the necessary and usual risks of the service, and is bound to exercise that degree of caution which persons of ordinary prudence would use under the same conditions of danger. Schultz v. Chicago & N. W. R. Co., 44 Wis., 638. §1072. Danger known to master and unknown to servant. One who agrees to work for another in any employment, takes upon himself the usual risks of such employment. But if there exist facts known to the employer and unknown to the employee, increasing the risks of such employment beyond its ordinary hazards, the employer is bound to disclose 260 ASSUMPTION OF RISKS. §io73-ia76 such facts to his employee; otherwise he will be liable as ior negligence in case of injury to the latter resulting from such unusual risks. Strahlendorf v. Rosenthal, 30 Wis., 674. §1073. Obvious risk — projecting circular saw. Where a defect or danger is open and obvious, although it exists in consequence of the negligence or default of the employer, still knowledge of it on the part of an employee of mature years will be presumed, and, although the employer may be said to be guilty of negligence in keeping his premises or machinery in a dangerous condition, the employee is also guilty of negligence in accepting the service, or continuing in it. Hazen v. West Superior Lumber Co., 91 Wis., 308. §1074. Precautions to prevent injury — flying switch. Plaintifif, while working at nig'ht on the repair force in defendant's yard, was struck and injured by a rapidly moving detached car which had been kicked by a switch engine upon the main track without any perscm or light on its front end to give warning of its approach. Upon the evidence — tending to show among other things, that the point at which the car was kicked upon the track could not be seen from the place where plain- tiff had been at work; that he had just started to leave that place and was walking beside the track with his back to the car; and that he did not see it or hear its approach — it is held that the questions of negligence and contributory neghgence were for the jury. Promer v. Milwaukee L. S. & W. R. Co., 90 Wis., 215. ' §1075. Same — duty of employer. It is the duty of an employer to exercise reasonable care and caution to protect his employees from avoidable dangers;- and an employee, by accepting and entering in the employ- . ment, does not assume the risk consequent upon a failure of the employer to perform such duty. Id. §1076. Killing of minor servant — skidding logs. Plaintiff's intestate, a minor employee of defendant, was killed while assisting in the skidding of logs. The skidway was at the foot of a steep hillside, down which the logs were rolled, the employees catching and straightening them when they began to roll crooked. The intestate, without any previ- ous experience in this work, had been engaged in it for about five days when he was run down by a rolling log and killed. 261 §1077-1079 MASTER AND SERVANT. Upon the evidence (tendjng to show, among other things, that the work had elements of danger not obvious to the experi- enced), it is held that the questions whether the deceased wa^ adequately instructed as to the ordinary dangers of the employ- ' ment, and whether he assumed the risk, were for the jury. Wolski V. Knapp-Stout & Co. Company, 90 Wis., 178. §1077. Same — questions for jury. In action for personal injuries, the two principal questions involved before the trial court were: (1) Was the defendant liable on the ground that it had not sufficiently explained to an unexperienced employee the ordinary dangers of the employ- ment? (2) Whether the deceased, under the facts disclosed by the testimony, assumed the risk of the ordinary dangers of the service? The testimony showed a case very near the border line on both questions. The deceased was a minor, so there is no presumption that he understood and appreciated the dan- ger, and under the testimony it was held that the two questions in the case, above stated, were for the jury. Wolski v. Knapp- Stout & Co. Company, 90 Wis., 178. §1078. Injury to minor — saw mill — ^unboxed gears. Plaintiff was a lad of 16 years and had worked in sawmills parts of four summers. He was injured by having his hand caught in rapidly revolving unboxed gear wheels, while attend- ing to a hot box. The evidence showed his work was per- formed at night; that his ordinary task was to oil the machinery when not in motion; that the box about which he was engaged was almost out of his reach, so that he had to stand on his tip-toes and steady himself with one hand, while he felt of the box with the other; that the box was in the shadow; and that his duties were such as necessarily to direct his attention to the condition o.f the box and n6t to the proximity of the wheel. Under the circumstances, it cannot be said, as matter of law, that he assumed the risk. Kucera v. Merrill Lumber Co., 91 Wis., 637. ' §1079. Same — wheeling dirt over narrow bridge. An employee, eighteen years old, of ordinary intelligence and accustomed to work, is held to have assumed the risks inci- dent to wheeling dirt on a timber ten inches wide, bridging a space of about twenty feet, and ten or twelve feet above the 262 ASSUMPTION OF RISKS. ,§Io8p-Io82 ground, in a wheelbarrow whose axle did not run true to plaintiff's own knowledge, and which was selected by him from a pile of wheelbarrows. Casey v. Chicago, St. P. M. & O. R. Co., 90 Wis., 113. §1080. Same — general rule as to — question for jury. If the alleged defect or element of danger is such that, in the exercise of ordinary care, the servant ought to have observed it and comprehended the result, then he assumed the risk if he continued in the employment. If the defect or danger is open and obvious, knowledge of it on his part will be presumed or imputed to him as a matter of law; and an adult servant is presumed to possess ordinary intelligence, judgment, and discretion to appreciate such danger, so as to regulate his conduct and avoid it. The same rule applies to the case of an employee who is a minor, where the defect or danger is open and obvious, in so far as he is of such age, intelligence, discretion and judgment as to enable him to com- prehend the situation and appreciate the danger incident to the work or employment, and it is a question for the jury to determine upon the evidence whether a minor servant was of sufficient age, intelligence, discretion and judgment as to bring him within the operation of the rule applicable to adult servants. Luebke v. Berlin Machine Works, 88 Wis., 443. §1081. Same — question for court. In an action by a minor for personal injuries, where the. evidence on the question of contributory negligence or plain- tifFs assumption of the risk was undisputed, and the inferences from it were plain and certain, the case need not be submitted to the jury. Luebke v. Berlin Mach. Wks. 88 Wis., 442, dis- tingulished; Casey v. C. St. P. M. & O. R. Co., 90 Wis., 113, ■followed; Herold v. Pfister, 93 Wis., 417. §1082, Same-^functions of court and jury. It is ordinarily within the function of the jury to apply to the facts shown by the testimony the principles of the law in which they are instructed by the court, and it is only when the proper application is so clea.r as to be free from doubt that it becomes a matter of law for the court. Wolski v. Knapp-Stout & Co. Company, 90 Wis., 178; Casey v. Chicago, St. P. M. & O. R. Co., 90 Wis., 113. 263 §1083-1087 MASTER AND SERVANT. §1083. Same — cogwheels. Plaintiff, a boy 18 years of age, was injured by having his hand caught between the cogwheels of defendant's paper machine which he was oiling. Upon the evidence, it was held that it was a question for the jury whether, from his previous experience with machinery, plaintiff should have comprehended the risk so that warning or instruction by defendant was unnec- essary. Chopin v.. Badger Paper Co., 83 Wis., 193. §1084. Same — ^knowledge of danger. The questions as to whether the plaintiff, 14 years old and entirel;^ unacquainted with machinery, "its workings or use, was of suffic4ent age and understanding to comprehend the dangers of his employment, and, if not, whether he had been sufficiently cautioned or instructed therein, were properly for the jury. Neilon v. Marinette & M. Paper Co., 75 Wis., 579. §1085. Same — covering to steam pipes on floor. Plaintiff, a girl of 16, nearly full-grown, of ordinary intelli- gence, was injured by stumbling over the covering to steam pipes on the kitchen floor, which covering was of boards, 13 inches wide and 2 inches high, in the shape of an inverted V. The condition of the floor was obvious, and plaintiff, who had worked in the hotel kitchen for five or six months, had never complained of it. Held, she assumed the risk. Herold v. Piister, 92 Wis., 417. §1086. Promise by master to remove danger — continu- ance in service after reasonable time for performance. Where the servant has the right to abandon the service because it is dangerous, and refrains from doing so in conse- quence of assur,ances by the master that the danger shall be removed, such assurances remove all ground for holding that the servant by continuing in the employment engages to assume the risk. But if the plaintiff continue in the employ- ment /for a reasonable time after the defendant could have removed the defects, he would then be deemed to have waived his objections and assumed the risk of operating the machinery in the unsafe and dangerous condition in which it was. Steph- enson v. Duncan, 73 Wis,, 404. §1087. Employee killed by empty car on coal dock. Plaintiff's intestate was employed by defendant at loading 264 ASSUMPTION OF RISKS. §I088-I090 coal cars on its dock, down to which empty cars were run by gravity, at all hours, under charge of a brakeman, but without any warning. Deceased was directed to go to another part of the dock, and had gone about 75 feet, when his vision was obscured by the steam escaping from a portable engine, and was killed by empty cars striking him. Although the place afforded deceased in which to work was manifestly not a safe one, he had assumed the risks incident to the employment, and a demurrer to the complaint should have been overruled. Osborne v. Lehigh Valley Coal Co., 97 Wis., 37. §1088. Failure of fellow-servant to exercise due care. The contract of employment between a master and servant, by implication, includes an assumption by the latter of all the ordinary risks incident to the employment, such as the risk of a co-employee's failing to exercise ordinary care and pru- dence. Da^hlke v. 111. Steel Co., 100 Wis., 431. §1089. Cracked saw — continuance in work after promise to repair. The danger of a saw four feet in diameter, and cracked 3 inches from the outside, ^flying in pieces and injuring all in the vicinity, when running 1,700 revolutions a minute, and let down upon a large bar or plate of iron with sufficient force to cut it in two, is so obvious, immediate, constant, and the prob- able consequences of inflicting bodily injury upon the plain- tiff, who assisted in operating the same, so great, that it con- stitutes negligence on his part to work at all with such a saw, relying upon the promise of the master to replace the saw after a few hours. The evidence of plaintiff, who was 35 years old and of fourteen years' experience with machinery, if unsup- ported, is not sufficient to support a finding by the jury that plaintiff did not have sufficient knowledge and experience to enable him to know the risk of working with such saw. Erd- man v. Illinois Steel Co., 95 Wis., 6. §1090. Same-7-rule as to. When an employee notifies the master of a special risk, and objects to continuing the work under the existing conditions, and is induced to continue such work by a promise to remove the danger in a reasonable time, then for such time the employee is not presumed to assume such risk. Stephenson v. Duncan, 265 §1091-1094 MASTER AND SERVANT. 73 Wis., 404; Sweet v. Ohio Coal Co., 78 Wis., 127; Corcoran V. Mil. Gas Lt. Co., 81 Wis., 191; Id. §1091. Exception to rule. But if the services cannot be continued without constant and immediate danger,- and the danger and its character are fully known to the employee, he assumes the risk if he con- tinues the employment. Id. §1092. Command of foreman — remaining in dangerous employment for fear of losing place. If an employee of full age and ordinary intelligence, upon being required by his employei^ to perform duties more danger- ous or complicated than those embraced in his original hiring, undertakes the same, knowing their dangerous character, although unwillingly, from fear of losing his employment, and is injure'd by reason of his ignorance and inexperience, he cannot maintain an action therefor against his employer. And where the foreman of defendant told plaintiff, when«iie objected to the work assigned him, "Either go there or get out," such fact does not change the rule. Dougherty v. West Superior I. & S. Co., 88 Wis., 343. §1093. Assurance of safety. An assurance of safety given by defendant, coupled with a command to return to work, will not afiford relief from the consequence of the assumption of the risks of the employment by plaintifif where the employee is of full age and capacity and knows the danger as fully as the employer. Showalter v. Fair- banks M. & Co., 88 Wis., 376. §1094. Failure to furnish "belt-shifter" — contributory negligence. In an action for personal injuries received by reason of defendant's failure to furnish a "belt-shifter," it appeared that plaintiff was a comrnon laborer, who had been around saw mills for twelve years, and was put to work on a machine having a tight and loose pulley; that the foreman showed how to shift the belt with a short stick,; that plaintiff was unaware of the danger in so doing, or that a belt-shifter was necessary ; that such an attachment could be applied with little difficulty; that he was not informed of the danger in shifting the belt with a stick, and a person without experience would not appre- 266 ASSUMPTION OF RISKS. §1095-1097. date the danger; and that he received the injuries complained of by reason of the lack of a belt-shifter, and while shifting the belt with a stick in the manner taught him. Under these circumstances the questions as to whether plaintiff was guilty of contributory negligence, or whether he assumed the risk, were properly for the jury. McDougall v. Ashland Sulphite- Fibre Co., 97 Wis., 382. §1095. Injury to minor — directing verdict. Although plaintiff in an action for personal infuries be a minor, it does not follow that the question of his assumption of risk be left to the jury. Where the facts are undisputed, and the inferences certain, it may be a question of law for the court. Larson v. Knapp, Stout & Co. Company, 98 Wis., 178. §1096. Death of switchman — ditch near track. In an action for the death of a switchman, it was in evi- dence that there was an uncovered ditch about 8 inches deep arid 10 inches wide, between two ties, and in a place where a switchman would naturally walk, which was used partly to allow play for the switch rods and partly for drainage. It was probable the man was killed by stepping in said ditch and falling between the cars. There were two other yards in the same city, in which deceased worked, that had all such open- ings covered, but in the yard where the accident occurred, there were several similar ditches, but much shallower. It was therefore properly held that the deceased did not assume the risk. Hennesey v. Chicago & N. W. R. Co., 99 Wis., 109. §1097. Injury to minor employee — clearing sawdust from SftWS. Plaintiff was 17 years of age and had worked at the machine in question or a similar one for two years and knew all about it. He was injured while attempting to clear away the saw- dust near the saws. He knew the danger of a stick being caught upon a revolving saw by reason of actual experience and had also seen such things happen in the mil] daily. He also knew there was. a perfectly safe way by which the saw could be cleaned and he was entitled to use this method and had frequently used it. Under the circumstances there is no escape from the conclusion that he assumed the risk and that a promise to repair could not be relied upon, because he was not com- 267 §1098-1100 MASTER A^D SERVANT. pelled to use the method he did, and he dehberately chose the dangerous way with knowledge of the dangers. Larson v. Knapp, Stout & Co. Company, 98 Wis., 178. §1098. Defective ladder. Whether a tool is defective, so as to render the person responsible for its reasonable safety for use liable for damages to an employee injured by some failure of duty in that regard, must be determined in the light of all the circumstances bearing on the question, and particularly, the right of such person to rely on the duty of such employee to exercise ordinary care for his own safety. The danger attending the use of a ladder is one of common knowledge, and where an experienced mechanic is injured by using a ladder whose only defect was the absence of points to prevent slipping on the floor, the court was not warranted, as matter of law, in finding the master negligent, when the defect, if any, was open and obvious to the person using it. Borden v. Daisy Roller Mill Co., 98 Wis., 407. §1099. Co-employee — assumption of risk — nonsuit. Where neither the pleadings nor evidence establish the fact that an employee had actual knowledge of the carelessness or incompetence of a fellow servant, and that the circumstances necessarily attending the performance of his duty as such employee were not such as to afford him the means of such knowledge, a nonsuit is improper. Daly v. Sang, 91 Wis., 336. §1100. Presumption of negligen,ce — stamping machine — question for jury. Plaintiff, a boy of 15, was injured by the unexpected descent of the die of a stamping machine so constructed as to descend only on pressure on a foot lever. The testimony conclusively showed there was no defect whatever discovemble in the machine. While the question as to whether the plaintiff was of sufficient capacity and experience to be deemed to have assumed the risk should have been submitted in the special verdict, the jury would not be warranted in finding the machine out of repair, and that defendant ought to have known it, and to have apprehended that a personal injury to plaintiff mighf probably result therefrom. Vorbrich v. Geuder & P. Mfg. Co., 96 Wis., 277. 268 FELLOW SERVANTS. §1101-1105 §1101. Assurance of safety — ^injury from caving in of trench. Plaintiff was employed by defendant to calk water-pipe in its trenches, and while at work in a trench about nine feet deep was injured by the sides caving and had been employed several years in that class of work; had noticed trenches cave in sev- eral times, and three times in the vicinity of where he was work- ing, the last one being only ten minutes before he was injured, and only two or three rods ahead of him, when plaintiff left the trench where he was working, but soon returned upon the assurance of the superintendent that the ditch was perfectly safe, and that he would buy lumber at once and have it braced up. Held, plaintiff assumed the risk, notwithstanding the ^assurance by the superintendent, he having full information of the peril. Showalter v. Fairbanks, M. & Co., 88 Wis., 376. §1102. Reliance on assurance. Inasmuch as plaintiff relied on the assurance of safety, and not on the promise to buy lumber and brace up the trench, he cannot now rely upon the latter promise in prder to relieve him from assuming the risk, even if such promise were sufificient to relieve him from such assumption. Id. , f. Fellow servants. §1103. General rule. A servant cannot recover damages of his master for injuries caused solely by the negligence of his fellow servant. Ein- gartner v. Illinois Steel Co., 94 Wis., 70. (Code.) §1104. Original rule. - In an action to recover for personal injuries, there v^as testimony that plaintiff was upon, defendant's train as an express messenger, or passenger, and also that he was in defendant's employ as a brakeman. The court held that if he was injured by the negligence of defendant's engineer, even though he was at that time a servant of the company, he was entitled to recover, he himself being guilty of no negligence which con- tributed to the injury. Chamberlain v. Milwaukee & Miss. R. Co., 11 Wis., 238. §1105. Rule now prevailing. One employee cannot recover from his employer for an 269 §II06-IIII MASTER A^SX) SERVANT. injury occasioned by the negligence of another employee engaged in the same business. Chamberlain v. M. & M. R. Co., 11 Wis., 238, as to this point overruled; Moseley v. Cham- berlain, 18 Wis., 700. §1106. When /master not liable. A master is not liable to those in his employ for injuries occasioned by the negligence or misconduct of a fellow servant in the same general business. So held in a case where the brakeman on an express train was killed through the negli- gence of the conductor of such train. Pease v. C. & N. W. R. Co., 61 Wis., 163. §1107. Same. This court has clearly estabUshed the rule that an employee cannot recover of his principal or employer for an injury caused by the negligence of another employee engaged in the same business, and the fact that the negligent employee has rhe power to direct the acts and movements of the one injured, does not take the case out of such general rule. Heine v. Chicago & N. W. R. Co., 58 Wis., 535. §1108: Same. It is the settled law of this state that an action will not lie against the master for an injury to a servant suffered by nim in the course of his service, through negligence of his fellow servant. Mosely v. Chamberlain, 18 Wis., 700; Cooper v. Milwaukee & P. du C. R. Co., 23 Wis., 668; Anderson v. Mil- waukee & St. P. R. Co., 37 Wis., 321. §1109. Same— lex fori. Where such an injury was received in another state, whose statutes grant a right of action in such cases, no action therefor will lie here. The remedy in personal actions, for personal injuries, is governed by the lex fori. Id. §1110. Same. It is well settled that a master is not liable to his servant for injuries caused by the negligence of a fellow servant, in the same general employment or business. Brabbits v. Chicago & N. W. R. Co., 38 Wis., 289. §1111. When master liable. It is equally well settled that under certain circumstances 270 FELLOW SERVANTS, §ILI2-HI5 the whole power and authority of the master are invested in an employee, in which case the negligence of the employee is the negligence of the master. Id. §1112. Who are fellow-servants — forenifin and workman on scaffold. A foreman, while engaged with another workman in adjust- ing the planks on a scaffold, was a mere fellow-servant of the other, and their employer is not lialble for an injury to the latter caused by negligence / or an improper direction of the foreman, where such direction was one appropriate for ^ne fellow-servant to give another. Stutz v. Armour,, 84 Wis., 'igS. §1113. Same — foreman and workman taking apart machin- ery. In an action for personal injuries caused by the fall of a heavy piece of machinery which the plaintiflf was helping take down and apart, it is held, under the evidence, that the negli- gence, if any, was the negligence of plaintiflf or his co-employees, for which the defendant was not liable, and although defend- ant's foreman assisted in setting up said machinery, he was, as to plaintiff, a mere co-employee. KUegel v. Weisel & V. Mfg. Co., 84 Wis.,. 148. §1114. Same — foreman of railroad repatr shops and employee. The foreman of a repair shop is a fellow servant of an employee therein, where as a volunteer he took hold to assist such employee in the work he was engaged in at the time of the injury. Hartford v. N. P. R. Co., 91 Wis., 374. §1115. Same — foreman and employee bnilding water-tank. Plaintiflf was employed by defendant, and directed to go to a certain place and do whatever defendant's foreman told him, and he was set to work aiding in the construction of a water- tank and wind-mill and was injured by the falling of a portion of the frame work, caused by the giving way of the anchor post, which had not been Set sufficiently deep in the gi-ound. Held, that the whole apparatus could not be considered as a single machine, which it was the duty of defendant to have all ready for use, but the putting it together and placing it in posi- tion was a part of the work to be done, and the injury was caused through the negligence of the foreman, and not through 271 §Ilt6-lI20 MASTER AND SERVANT. defendant's machinery or appliances. Peschel v. Chicago, M. & St. P. R. Co., 62 Wis., 338. §1116. Same — authority of foreman. A foreman having no general authority to hire or discharge men, but being under the direction of a master carpenter, who had such authority, the plaintiff and such foreman must be con- sidered fellow-servants engaged in the same common work or employment. Id. §1117. Same — employee propelling machinery used in unloading coal from a vessel, and one employed at the hatch to give warning. One, who is engaged ih the management and control of the engine "and machinery used in unloading coal from a vessel, and a hatchman employed by the master to give warning, are fellow-servants with the plaintifif and members of the gang employed in unloading from the vessel, all being engaged in the common undertaking of unloading the coal from the same boat and under common direction and command, with no right of control, one over the other. Portance v. Lehigh Valley Coal Co., 101 Wis., 574. §1118. Same — switchman and car repairer. Persons working for the same employer, bearing such rela- tions to each other and to the business in which they are jointly engaged in for such employer, as a switchman and car-repairer, are fellow-servants, and the master is not liable to one for an ■injury caused through the negligence of the" other, unless made so by statute. Smith v. Chicago, M. & St. P., 91 Wis., 503. §1119. Same — coal-heavers and track-walkers. Coal-heavers or firemen, who load coal on a locomotive tender, are fellow-servants of a track-walker employed by saftie defendant, and for an injury caused the latter by their negli- gence, the defendant is not liable. Schultz v. Chicago & N. W. R. Co., 67 Wis., 616. §1120. Same — station-agent and brakeman— exception. A station-agent and a brakeman are fellow-servants, and unless the former is shown to be incompetent to the knowledge of the defendant company, the latter is not liable for injuries caused the brakeman by the negligence of the station-agent. Toner v. Chicago, M. & St. P. R. Co., 69 Wis., 188. 272 FELLOW SERVANTS. § I 1 2 I - 1 1 2 7 §1121. Same — engine-wiper and freight train operatives. An engine-wiper is a fellow-servant of those engaged in operating a freight train. Ewald v. Chicago & N. W. R. Co., 70 Wis., 430 §1122. Same — bricklayers and hodcarriers. Bricklayers, and carriers of brick and mortar, employed by the san ^ person and engaged in the same work, are co-empl yees, and an injury to one through the negligence of another will not make the employer liable therefor. Blazinski V. Perkins, 77 Wis., 9. §1123. Same — foreman calking water pipe and assistant. While the foreman having charge of laying certain water pipes, was personally engaged in calking some of them, and plaintifif was injured while helping him raise them, the negli-' gence (if any), of the foreman in not properly wedging the pipes, was the negligence of a fellow servant. Johnson v. Ashland Water Co., 77 Wis., 51. §1124. Same — stove tender in blast furnace and common laborer. Where a stove tender in a blast furnace was being assisted by a common laborer, who, by the direction of their common employer, was assisting in and working under his direction ih repairing the door on the stove, the relation of fellow servant exists between them. Dahlke v. 111. Steel Co., 100 Wis., 431. §1125. Same — ^foreman and assistant constructing appli- ance, and operator of same. A foreman and assistants constructing semaphores, are not fellow servants of one employed in operating same. Welty v. Lake Superior T. & T. Co., 100 Wis., 128. §1126. Same — section boss and brakeman. The negligence of a section boss in not keeping free from obstructions the place alongside of the track, where brakemen are compelled to run for the purpose of coupling cars, thus rendering the wojrk unnecessarily dangerous, is the negligence of the company, and it is liable for injuries caused a brakeman by reason thereof. Hulehan v. Green Bay, W. & St. P. R. Co., 68 Wis., 530. §1127. Same — conductor of gravel train and track repairer. In an action against a railway company for injury to an 18 273 §1128-1131 MASTER AND SERVANT. employee, it appears that the plaintiff was at work, with a num- ber of others, filling in dirt and gravel between the ties, and dressing up the surface of defendant's track, and it was his duty to get upon the cars when the gravel train came up and shovel off the gravel. When the gravel train came up plaintiff was ordered by the conductor of said train to get on the train for the purpose of being taken to the place where the gravel was to be unloaded to unload the same, and w