148 Wis. 1 | Wis. | 1912
The brake in question and all the machinery connected with it seem to have been of approved pattern, in excellent condition, and were absolutely essential machinery for the proper operation of the car. So far as, appears in the case, it would not be possible to have a brake covered or so firmly fastened in position that a passenger could not release it if he deliberately endeavored to do so, and yet have it capable of instant release by an employee when the necessities of the service required. There are nu~
The general principle often decided is that a carrier is not bound to anticipate that a passenger will intentionally med-idle or interfere with the machinery of the car or train; that the meddler becomes thereby a trespasser; and if injury results to another passenger by his act the carrier will not be liable in the absence of any other ground of negligence. Carriers are rightly held to a high degree of diligence, but they are not held responsible for the lawless acts of third persons not under their control, which they could not reasonably anticipate. McDonnell v. N. Y. Cent. R. Co. 35 App. Div. 147, 54 N. Y. Supp. 747; McDonough v. Third Ave. R. Co. 95 App. Div. 311, 88 N. Y. Supp. 609; Moore v. Woonsocket St. R. Co. 27 R. I. 450, 63 Atl. 313; Krone v. Southwest Mo. E. R. Co. 97 Mo. App. 609, 71 S. W. 712. While there is •some evidence in the case to the effect that passengers sometimes played with the brake, or leaned against it, or touched the dog with their feet, there is absolutely nothing in the evidence to show that a passenger was ever known to deliberately loosen it when properly set, as in this case. Had the brake here been released by accident, by reason of a passenger’s striking the dog with the foot, and releasing it, or in some other purely accidental way, the question presented would be of a different character.
On the undisputed facts presented, a verdict for the defendant should have been directed, on the ground that no negligence was shown.
By the Gowrt. — Judgment affirmed. ,