180 Wis. 84 | Wis. | 1923
Counsel for defendant rely on the case of Stephani v. Manitowoc, 101 Wis. 59, 76 N. W. 1110. In that case plaintiff’s intestate fell at night into the open draw of a bridge which was maintained as part of the street and frequently opened for the passage of vessels. The evidence showed that deceased had frequently crossed the bridge; that she was a woman possessed of all her faculties; that previous to the swinging of the bridge at the time of the accident a bell was sounded, .which she might have heard; that the passing vessel made a loud noise; that if she had looked and listened she might have known that the bridge was open; and that the approaches to the bridge were lighted by electric lights.
The deceased had lived in Manitowoc for many years and had crossed the bridge almost daily. It was admitted that she must have known that it was a swing bridge without guards and that a person who walked off from the approach would go into the river. It was held that the evidence "precluded a recovery; that the possible yawning chasm was as great and real á danger, as the possible rushing locomotive. ■ In many respects the facts already stated show a wide distinction between the two cases.
In the case before us there was no open chasm, but merely a crack to show where the draw and the abutment came together. The jury might well haVe believed that there was no such line of demarcation as would show a stranger where the draw ended and the'bridge began. The plaintiff’s eyesight was defective and he was utterly unfamiliar, with the bridge he was crossing. As stated in the opinion of the trial
It can hardly be claimed that the plaintiff was negligent in choosing his mode of escape from the imminent danger which threatened him. He had to decide quickly whether he would run and jump for his life or be carried more than 100 feet in the air and take the chance of being thrown into the river. Of course the burden was on the defendant to show the contributory negligence, and we consider that this was a jury question.
It is claimed by defendant’s counsel that the court should have set aside the answer of the jury to- the effect that the system of bells and gongs was insufficient. In considering this question the jury had the right to consider whether signals given by the bells could be easily confused with those given by other bells in the vicinity and whether they indicated the point of danger and the points of demarcation of the draw. We do not consider that this answer of the jury should have been disturbed.
■ One of the 'main issues litigated was whether the finding of the jury that the absence of a guard or barrier made the bridge unsafe for persons using ordinary care should be sustained. Barriers or guards were in use on other bridges in Green Bay, and the testimony of the assistant engineer of the city was to the effect that it was entirely practicable to have them installed on this bridge.
It is claimed by counsel for defendant that there was no necessity for gates or barriers; that the draw itself made a barrier at the easterly end of the bridge, the end on which plaintiff entered the draw. We do not appreciate the force of this argument. If the testimony of the plaintiff is to be believed he walked upon the draw without observing or knowing that it was a draw and suddenly found himself suspended in mid air with but an indifferent chance of escape.
“No doubt it was the duty of the defendant to make its drawbridge reasonably safe and sufficient for the safe passage of travelers upon it, both by ‘day and in the nighttime. It was built for a drawbridge. It was contemplated that the draw would often be open at times when travelers would be crossing upon the bridge. It is in relation to this function that its sufficiency is to be considered. If it was not reasonably safe as a drawbridge without some barrier, to warn travelers and so protect them from falling from the bridge when the draw was open, then the city was in fault in not having provided such a barrier; or, if.it was not reasonably safe and sufficient as a drawbridge in the nighttime without being lighted, then it was the duty of the city to light it in the nighttime, — for. the city had not completely done its duty to the public until it had made that drawbridge reasonably safe and sufficient for the passage of travelers at all times. If the want of such a barrier or light was a defect at all, it was a defect in the structure of the bridge itself. Reasonable care and diligence on the part of the city would easily have remedied it.” Stephani v. Manitowoc, 89 Wis. 467, 471, 62 N. W. 176.
On the second appeal this rule was adhered to, although the case was determined on the ground of contributory negligence.
In the present case plaintiff’s counsel based the liability of the city on the grounds that the system of bells and gongs was insufficient and that there were no barriers. No claim was made by plaintiff that the bridge-tender was negligent in the performance of his duties, and although that issue
Counsel for defendant argue that the answer of the jury on this issue should have been set aside; that the bridge-tender’s negligence was the proximate cause of the injury. As already stated, the jury exonerated him and the trial judge affirmed their finding. We cannot say that there was no evidence to sustain the verdict on this issue.
By the Court. — Judgment affirmed.