| Wis. | Jan 16, 1917
The following opinion was filed November 14, 1916:
Plaintiff was about forty-six years of age, in good health, and carried only a light handbag at the time of her injury. She was the last passenger to alight. She testifies she stepped-from the platform with her right foot squarely on the first step, then as she raised her left foot and put it forward to step down to the next step she felt the heel •of her right foot sink in or catch in something and she fell. She says her foot did not slip.
"Q. What if you know caught the heel of your shoe in the manner in which you have described? A. Well, there must have been something the matter with the step, something wrong with it, because when I stepped like this I either •caught or sunk in, something was hold of me some place. Court: Q. You mean something was hold of you some place, where? A. Well, I meant my ankle or my — Q. Foot? A. My foot. I couldn’t step. Q. You couldn’t lift it up? A. No.”
She further testified that she was not hurried, that she was •calm and got off the car as she usually did; that she can’t say that she looked where she stepped, and did not look at the (step after she fell. No one else saw her fall and there is no iother evidence of a defect in the car step. The jury not only .found there was a defect, but that it had existed so long that "the defendants in the exercise of ordinary care ought to have 'discovered the defective condition in time to have prevented the injury. To our minds both findings rest upon conjecture. ’There is nothing in the evidence that furnishes any basis for a reasonably certain correct conception of the nature of the alleged defect, much less of its duration. Plaintiff, herself, is compelled to resort to an alternative, for she says her heel ■either sank in or was caught by something, but how or why it .sank in or how or why it was caught we don’t know. From
This is not a case of res ipsa loquitur, but an ordinary negligence case in which the burden rests upon the plaintiff to show to a reasonable certainty the nature and character of defendant’s negligence. Proof of negligence may be by testimony of what is seen, heard, felt, or smelled, provided it is so definite and satisfactory as to render reasonably certain the nature or character of the negligence testified to. When, as here, it fails to do this, it falls short of the legal test.
In our view of the case it is not material whether or not the accident happened upon car No. 303, as the court found, or whether defendants’ testimony that its car steps were free from defects is satisfactory or conclusive, because giving, as we do, full credence to plaintiff’s own testimony we hold that it, fails to establish a cause of action.
Plaintiff was a woman about forty-six years of age, in good health, and burdened with only a light handbag when she fell, and the car was standing still at a terminal station. Under such circumstances no duty devolved upon defendants to assist her in alighting.
Plaintiff has had two trials in which her testimony has been substantially the same. It is not probable that any new evidence can be furnished upon another trial. She is therefore in the unfortunate position of not being able to show in what respect defendants were negligent.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the action.
A motion for a rehearing was denied, with $25 costs, on January 16, 1917.