Diamon v. Iron River Lumber Co.

| Wis. | Feb 18, 1913

TimliN, J.

The breaking down of the wheel under an ordinary load upon a smooth, level road while the wagon was moving at a modérate gait was evidence from which the jury might infer that the wheel was defective. Guse v. Power & M. M. Co. 151 Wis. 400" court="Wis." date_filed="1912-12-10" href="https://app.midpage.ai/document/guse-v-power--mining-machinery-co-8190742?utm_source=webapp" opinion_id="8190742">151 Wis. 400, 139 N. W. 195. But the fact, standing alone, that the appliance was defective fails to establish that the defendant was negligent. Guse v. Power & M. M. Co., supra. It must also be shown that the defendant knew or ought in the exercise of ordinary care to have known of this defect. This latter necessary element of the defendant’s liability is not supplied by the appearance of the spokes in evidence nor by the opinion evidence mentioned, taken in con-neetion with, onr own observation of tbis evidence. Two spokes as stated were unquestionably sound and strong, and the third had a crack or defect at the junction of the spoke with the hub not extending across, and all were well covered with a heavy coat of paint. The last mentioned spoke was of inferior, sappy wood and somewhat decayed, but not so that the defect was obvious. There was also evidence on the part of the defendant showing an annual inspection of these wagons as stated and also some care in keeping them in repair. No negligence on the part of the defendant having-been shown, a verdict was properly directed in its favor. Boelter v. Ross L. Co. 103 Wis. 324, 79 N. W. 243, is like the instant case, except that there the defendant’s foreman was informed, on the day prior to the injury in question, that the wagon was defective.

By the Court. — Judgment affirmed.