110 Wis. 326 | Wis. | 1901
It is impossible to tell with any degree of certainty from the evidence at what point the plaintiff drove upon the street-railway track, or what distance he traveled upon the track, or where the collision in fact occurred. The plaintiff’s verified complaint (which has never been amended) states that- while he was driving along Putnam street, at a point about 100 feet south of Birch street, he attempted to cross the track from the west to the east side of the street, and while in the act of crossing was struck by the car. It appears that he was examined as an adverse party before the trial, and he admits that he then testified that he had traveled on the track but a little ways before the accident happened; also that he then testified that he had traveled probably the length of his wagon, or twice that length, on the track, before he was hit; but he now says that he made a mistake in so testifying. Upon the trial he testified that he had driven upon the track the width of two lots fifty or
The evidence of Palmer is that the car was traveling from twelve to fifteen miles per hour, and did not slacken its speed; and this is the only evidence as to the speed of the car. The plaintiff ^ays that his team was walking, but he does not fix the speed. While it is impossible to reconcile all of the evidence, there are certain results which may be deduced therefrom with certainty. If plaintiff entered on the track after traversing one third of the block (142 feet), and traveled north one third of a block, he was 631
The claim is now made by appellant that there was evidence in the case sufficient to show a case of wilful intent to injure, or that reckless and wanton disregard on the part of defendant’s employees of the plaintiff’s rights and safety Avhich is deemed equivalent to an intent to injure, and may be called a constructive intent, and which has been inaccurately termed-gross negligence. Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333. With regard to this claim it is sufficient to-say that no such cause of action is stated, or attempted to
By the Oourt.— Judgment affirmed.