89 Wis. 371 | Wis. | 1895
Errors are assigned as follows: (1) In the admission of testimony; (2) in denying defendant’s motion for a nonsuit, and in refusing to grant a new trial; (3) in refusing to submit to the jury questions proposed by the defendant for special verdict; (4) in the charge to the jury.
The errors complained of in the admission of testimony relate to the testimony of physicians relative to the physical and mental condition of the plaintiff a year and a half after the accident. The accident happened in February, 1892. In August, 1893, the plaintiff became the patient of Dr. Becker. The doctor was permitted to describe the condition in which
The negligence which is alleged and claimed against the-defendant is its omission to place guard wires over its trolley wires in such a way as to prevent the telephone wires, in. case of their falling from any cause, from falling upon and coming in contact with the trolley wires. It is claimed that the defendant owes the duty to the public to guard it. from the effect of accidents which may happen to the telephone wire, which it neither owns nor controls. The employment of electricity to propel cars along railway tracks, in cities is of recent institution. It may well be that the dangers attending its use in that function, and the best mode of guarding against accident in its use, are not yet fully known and understood, hfany of the phenomena and the possibilities of danger attendant upon such use are still subjects of question and, experiment. But notwithstanding this condition of imperfect knowledge, the law permits this, mysterious and dangerous power to be used for locomotion in the streets of cities. It is lawfully there. No doubt it. is the duty of the defendant to use such customary and approved appliances as are known and used in the business of operating electric railways. So far as reasonable knowledge, in the present state of the science and the practical use of electricity as a motive power for street railways, and reasonable foresight, can go, it is bound to guard the public against the perils attendant upon this use of electricity. But it is liable only for what is known as reasonable care. The present state of the science, and the present practical knowledge of the most practical and effectual means and methods of guarding against such perils as are incident to its use, are a most important element in the question of what is reasonable care. In the present condition of the-science and of the practical knowledge on this subject, it
It is claimed that plaintiff’s accident was caused directly by contact with a telephone wire belonging to the telephone •company and neither owned nor controlled by the defendant, and in a street to which its system did not extend. More remotely, it is supposed to have been caused by the falling of the telephone wire' upon the trolley wires, which became a live Avire by such contact. There would be no •claim against the defendant unless it could be shown that the telephone wire was alive with electricity communicated to it by the trolley wires. The defendant may be liable for the result if its omission to guard its wires was negligence .and if that negligence Avas the proximate cause of the plaintiff’s damages. The real first cause of the accident is in •doubt. The real test of the defendant’s liability for the plaintiff’s apcident is whether the omission to guard its wire, that being found by the jury to be negligence, Avas the proximate cause of the accident. The negligence 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 intelligence and prudence. It is not enough to prove that the accident is the natural conse■quence of the negligence. It must also have been the probable consequence. Atkinson v. Goodrich Transp. Co. 60 Wis. 141, 163; Barton v. Pepin, Co. Agr. Soc. 83 Wis. 19. This, too, is always a question for the jury Avhere the evidence is not •clear or the proper inference from undisputed evidence may be in doubt. The defendant ashed to have this question submitted in the special verdict. This Avas refused, and no instruction was given relating to this, element in the question •of proximate pause. The defendant’s proposed question •was as folloAVS: “ Ought men of ordinary intelligence and
The charge of the trial court was long a¡nd copious. It contained a long and able disquisition upon the subject of the uses and purposes of highways and of the rights of travelers to free and unobstructed passage therein. He said: “ The public have the right to the free and unmolested and unobstructed use of the streets, and no person has the right to hinder and prevent the use of the streets for the purpose of travel,” and much more to the same purpose. It would be all very well in a case where questions of that nature were involved. Rut in this case it tended really to keep out of sight and obscure the real point in controversy. Roth the telephone company and the defendant had a perfect legal right to have their wires over the streets. They were no illegal obstruction of the streets. The point involved in relation to them depended on entirely different considerations. It was whether the defendant was negligent in permitting the telephone wire to fall upon its wires. This part «of the charge went upon a mistaken theory of the case, and was very likely to mislead the jury by distracting attention from the point of stress in the case.
Eor the errors mentioned the judgment must be reversed.
By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause remanded .for a new trial. , '