Ritger v. City of Milwaukee

| Wis. | Apr 12, 1898

Pinnet, J.

When the plaintiff’s intestate, Eitger, entered Neuman’s private conveyance to ride with him, he made such convejmnce, for the time being, his own, and assumed the risk of the skill and care of Neuman, the person driving it, whom he thereby made his agent for that purpose. The contributory negligence of Neuman, the driver of the private conveyance in which Eitger was voluntarily riding at the time he received the injury which resulted in his death, is imputable to Eitger, so as to prevent a recovery by the plaintiff, as his administratrix, in this action. Prideaux v. Mineral Point, 43 Wis. 513" court="Wis." date_filed="1878-01-15" href="https://app.midpage.ai/document/prideaux-v-city-of-mineral-point-6602461?utm_source=webapp" opinion_id="6602461">43 Wis. 513; Otis v. Janesville, 47 Wis. 422" court="Wis." date_filed="1879-08-15" href="https://app.midpage.ai/document/otis-v-town-of-janesville-6602933?utm_source=webapp" opinion_id="6602933">47 Wis. 422.

The uncontradicted evidence is clear and decisive to show that the horse attached to the buggy, and driven by Neu-man, in which he and the plaintiff’s intestate were riding, became frightened, but not by reason of any defect in the street, so that he became more than momentarily uncontrollable, and ran away, whereby he ran against the center post in the street, and the plaintiff’s intestate was thrown out of the vehicle, receiving the injuries which caused his death. It has been repeatedly held that there can be no recovery against the town or city in consequence of injuries sustained by reason of a runaway or uncontrollable horse. Jachson v. Bellevieu, 30 Wis. 250" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/jackson-v-town-of-bellevieu-6600939?utm_source=webapp" opinion_id="6600939">30 Wis. 250; Bishop v. Belle City St. R. Co. 92 Wis. 139" court="Wis." date_filed="1896-01-07" href="https://app.midpage.ai/document/bishop-v-belle-city-street-railway-co-8185062?utm_source=webapp" opinion_id="8185062">92 Wis. 139; Schillinger v. Verona, 96 Wis. 456" court="Wis." date_filed="1897-06-11" href="https://app.midpage.ai/document/schillinger-v-town-of-verona-8185582?utm_source=webapp" opinion_id="8185582">96 Wis. 456. In the recent case of McFarlane v. Sullivan, post, p. 361, the subject was elaborately considered, with copious citations of authorities. The evidence is uncontradicted, clear, and decisive that the proximate cause of the injury which resulted in the death of the plaintiff’s intestate was that the horse attached to the vehicle in which he was so riding had wholly passed beyond and escaped from the control of the driver, and ran away, so that the vehicle collided with the center pole, and Eitger thereby received fatal injuries. While it is alleged that the proximate cause of his death was the negligent acts and omissions of the defendants, the evidence clearly shows that another adequate and'independent cause intervened between the alleged negligence and the injury, and became the proximate cause of it.

It is beyond dispute that the primary cause of the injury, and which led, by regular sequence, to the death of Ritger, was the more than momentary escape of the horse from the control of the driver. This was the thing amiss, by reason of which the vehicle collided with the center post, with the result stated. The evidence does not show that the loss of control of the horse was merely momentary or accidental, or one which would have been at once regained if the vehicle had not come in contact with the center pole. It was not a case where the horse swerved quickly to one side, and the driver might readily have brought him to his proper position and course, but it was unmistakably the case of a runaway. The testimony of the driver is positive and emphatic, and against it there is no evidence from which any inference to the contrary can be fairly drawn. The driver’s evidence is to the effect that it was after 10 o’clock at night; that they drove in on Lisbon avenue down to Twenty-Fourth street. “There my horse got scared, and made a jump, and started to run. This was right on the corner of Lisbon avenue and Walnut street. I was intending to go down Walnut street, east. My horse seemed to get frightened at the electric light. It kind of flickered, and he jumped to the left, and the. left front wheel struck the center trolley post. When the wheel struck the post, we both flew out of the buggy. I landed on the ground, straight; and he flew against the trolley post, striking on the head.” “ The horse ran away. I couldn’t hold him. . . . As we came down Lisbon avenue Ritger was sitting on the left-hand side of the buggy. I was driving, and was trying to hold the horse when the pole was struck. I said,£ Whoa, Tom! ’ but all at once he struck the post, before I was able to stop him.” He further testified that when he came to the lamp he “had his horse under control, and was going at an ordinary trot.” “ Then the horse made a jump and tried to run.” “ Then he was going faster when he got scared.” The witness affirmed that the horse was running away; was out of his control; that he couldn’t handle him; that when he struck the post “ he was on a good run, and he had lost all control of him.” “At the instant when the buggy struck the post, I was trying to hold the horse, saying, ‘ Whoa, Tom! ’ and hanging onto the lines, and I couldn’t hold him any more.” He expressed the opinion that he could have stopped the horse within 100 or 200 feet from the place where he was frightened, if he had hot struck the post, and said he could not handle him in a short distance. His opinion was at best a mere conjecture, and does not appear to be supported by the attending facts and circumstances, which all clearly tend to show that the horse was more than momentarily uncontrollable. As against the positive statement of the witness Heuman, to the effect that the horse was running away and was beyond his control, and that this was a condition of more than momentary duration, no mere conjecture or inference, not sustained by competent and quite satisfactory evidence, could suffice to take the case to the jury-

It is stated- in Titus v. Northbridge, 91 Mass. 258" court="Mass." date_filed="1864-10-15" href="https://app.midpage.ai/document/ames-v-king-6414193?utm_source=webapp" opinion_id="6414193">91 Mass. 258, that “ when a horse, bjr reason of fright, disease, or viciousness, becomes actually uncontrollable, so that his driver cannot stop him or direct his course, or exercise or regain control over his movements, and in this condition comes upon a defect in the highway, by which an injury is occasioned, the town is not liable for the injury, unless it appears that it would have occurred if the horse had not been so uncontrollable.” In such case it is considered that the conduct of' the horse is the primary cause of the accident; that there are two efficient, independent, proximate causes,— the primary cause being one for which the corporation is not liable, and as to Avhich the driver himself is in no fault, and the’ other being a defect in the highway; hence it is impossible to determine that the accident would have happened but for the primary cause. Municipalities “are under no duty to-provide for everything that may happen in the street, but only for such things as ordinarily exist, or may reasonably be expected to occur,” and hence are not bound to so care for the streets that damage may not be caused thereon by horses which have escaped from the control of their driver and run away. Dillon, Mun. Corp. § 1015.

As was said in Scannal v. Cambridge, 163 Mass. 93: “It is. difficult to discover any evidence on which the jury could find' that this [Neuman’s] loss of control of the horse was only momentary. If it was something more than a momentary accidental loss of control, which ought not to he treated as-an independent, contributing cause of the injury, and was a permanent or long-continuing condition, the plaintiff would be precluded from recovery, even if the way were defective.” In that case the plaintiff testified that he “ had no more control of the horse than a baby would have; that he tried to pull the horse in, and to steer him out into the street again,, but he couldn’t do it.” In the present case the driver had quite as little control over the horse, which was actually running away, and when the fact of inability to control, or readily to regain control of, the horse appears, the rule applies. It is not essential that this condition shall exist, if once established, during any definite period, or that the horse shall run any prescribed distance. "Whether the case should have been submitted to the jury involved, upon the undisputed facts, a mere question of law, namely, whether the' case, upon all the evidence, was open to any fair inference that the driver lost control of the horse more than momentarily. Against his clear statement of existing facts, we are unable to say, upon all the evidence, that any inference could be fairly drawn upon which a verdict for the plaintiff could be properly supported. ¥e think that the nonsuit was properly granted.

By the Court.— The judgment of the circuit court 'is affirmed.