126 Wis. 37 | Wis. | 1905
Tbe complaint, wbicb was tbe same on each-trial, contained tbe following allegations:
“That said wooden wheel on said last-named date, and for a long time prior thereto, was also defective in that a large piece thereof was broken therefrom, and in that tbe outer surface of tbe circumference was uneven and worn so that in its operation, and especially when in contact with said iron wheel' aforesaid producing tbe friction necessary for tbe operation of said apparatus, it operated in an uneven and jarring manner j and that such defects in said wooden and iron wheels when such wheels were in operation caused an unusual, unnecessary, and excessive strain upon said iron wheel. . . . That said iron wheel bad been worn out by reason of long usage, as aforesaid, and that said iron wheel and said wooden wheel were defective, untrue, and out of repair in tbe respects heretofore mentioned, and that by reason of tbe fact that tbe said wooden wheel was broken and defective as above stated, and by reason of tbe wornout condition of said wheels, and tbe unj usual and unnecessary and excessive strain upon such wheels by reason of tbe defective condition thereof as afoi’esaid, said iron wheel was caused to be broken as aforesaid, with the results aforesaid.”
Tbe decision of this court on tbe former appeal (118 Wis. 47, 94 N. W. 654) is decisive here. This court, after quoting from tbe allegations of tbe complaint, above stated, said (118 Wis. 52, 94 N. W. 656):
“If such were the facts, then it was tbe defect in tbe wooden wheel wbicb acted first, and set in motion the iron*40 wheel, and first caused tbe crack and then tbe break in that wheel.”
And further on, after quoting from the plaintiff’s evidence to the effect that plaintiff had knowledge of the defect in the wooden wheel for a month before the accident, the court said (118 Wis. 53, 94 N. W. 656):
“If the defect in the wooden wheel was the proximate cause of his injury, and he knew of such defect for a month prior thereto, then he necessarily assumed the risk, and was guilty of contributory negligence.”
Assuming that the evidence on the last trial on the question of proximate cause and assumption of risk was substantially the same as that upon the first tidal, under this ruling the defect in the wooden wheel was the proximate cause of the injury, and plaintiff assumed the risk. After a careful examination of the testimony we are convinced that the evidence upon the last trial on the question of proximate cause and assumption of risk was substantially the same as the testimony on the first trial. Therefore the questions of proximate cause and assumption of risk involved on the last trial were presented on the former appeal, and the decision upon these questions on the former appeal must be held binding upon this court, as well as upon the trial court, and “whether the decision was rightly or erroneously pronounced is no longer debatable.” Bostwick v. Mutual L. Ins. Co. 122 Wis. 323, 99 N. W. 1042; Zimmer v. Fox River Valley E. R. Co. 123 Wis. 643, 101 N. W. 1099; Collins v. Janesville, 111 Wis. 348, 87 N. W. 241, 1087; Darcey v. Farmers’ L. Co. 98 Wis. 573, 74 N. W. 337; Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563.
By the Gourt. — The judgment of the court below is affirmed.
