Gay v. Milwaukee Electric Railway & Light Co. , 138 Wis. 348 ( 1909 )

Kerwin, J.

Tbe defendant is a corporation engaged in operating an electric street railway line in tbe city of Milwaukee for tbe carrying of passengers. On tbe 20tb day of •June, 1903, tbe time of tbe accident, tbe plaintiff was a passenger on tbe defendant’s car, when tbe controller at tbe front ■end of tbe car operated by tbe motorman exploded or sbort-■circuited and caused fire in tbe car. Tbe passengers became excited, and in tbe rush and excitement tbe plaintiff was injured, wbicb injury it is alleged'was caused by tbe negligence •of tbe defendant. Several grounds of negligence are alleged in tbe complaint, mainly in failure to provide proper appliances, failure to provide a proper motor, controller, circuit breaker, and fuse, and failure to inspect and properly operate the car. It is insisted by appellant (1) tbat there is no evidence to support tbe verdict on tbe question of defendant’s negligence; (2) tbat tbe damages are excessive; and (3) tbat tbe verdict is insufficient to support a judgment in favor of tbe plaintiff.

We tbink it clear tbat tbe last objection is fatal to tbe judgment for two reasons: Eirst, because there is no finding of negligence; and, second, because of the form of the third question. On the point that there is no finding of negligence in the verdict the jury found:

“(2) Was the apparatus known as the 'controller’ on the car in question, at the time of the accident, defective and out of repair?. A. Tes.

“(3) If you answer the foregoing question in the affirmative, then answer this question, otherwise not: Did the defendant company have knowledge of the defective condition of the controller, or ought it to have known of such defective condition? A. Yes.”

“(5) I'f you answer the second, third, and fourth questions, or either of them, 'Yes,’ then answer this question:. Was such negligence the proximate cause of plaintiff’s injury? A. Yes.”

It will be seen that by the second question the jury found' merely that a defect existed, and by the third that the defendant knew or ought to have known of the defective condition. There is no finding as to how long the defect existed before the injury. It might have occurred the instant bef fore the accident and the defendant have immediate knowledge of it, but not for sufficient time before the accident to-have remedied it. This state of facts satisfies the finding, but would not support a judgment, for want of a finding in some-form to the effect that the defect had existed for such length of time before the injury as to- enable the defendant to repair it. Nor does the finding of proximate cause in the fifth question help the matter, for it will be seen that this simply finds that “such negligence” was the proximate cause of the injury. “Such negligence” under the verdict could only refer to the-third question and answer or the second and third, but these together or singly do not find the essential facts necessary to malee a case. Moreover, the third question being in the alternative, there is no finding that the defendant knew ox-ought to have known of the defect. That this finding is insufficient bas been ruled by tbis court and discussion of it is unnecessary. Jewell v. C., St. P. & M. R. Co. 54 Wis. 610, 617, 12 N. W. 83; Sherman v. Menominee R. L. Co. 77 Wis. 14, 45 N. W. 1079; Gunther v. Ullrich, 82 Wis. 222, 52 N. W. 88; Klochinski v. Shores L. Co. 93 Wis. 417, 67 N. W. 934; Dugal v. Chippewa Falls, 101 Wis. 533, 77 N. W. 878; Shaw v. Gilbert, 111 Wis. 165, 86 N. W. 188; Gehl v. Milwaukee P. Co. 116 Wis. 263, 93 N. W. 26; Lowe v. Ring, 123 Wis. 370, 101 N. W. 698; Odegard v. North Wis. L. Co. 130 Wis. 659, 110 N. W. 809. Tbe subject is considered in a late case in tbis court—Du Cate v. Brighton, 133 Wis. 628, 114 N. W. 103,—where tbe cases are collected and discussed. This case is directly in point and controls tbe question here; It follows that tbe judgment must be reversed.

It is also insisted by appellant that the damages are excessive. Tbe jury found $3,000 damages. Tbe injuries alleged in tbe complaint for which compensation is sought consisted of an alleged concussion of and injury to tbe spine and nervous shock, causing traumatic neurosis, and tbe result thereof including a diseased heart and a serious and permanent injury to tbe -eye. Tbe jury found in answer to tbe eighth question that tbe diseased condition of the heart was not caused by tbe injury sustained by tbe plaintiff at tbe time and place of injury, and by answer to tbe tenth question that tbe traumatic neurosis was not caused by tbe injury sustained by tbe plaintiff at tbe time and place in question, and further found in answer to tbe eleventh question that tbe injury sustained at tbe time and place in question was not) tbe inciting cause of the disease or inability of which plaintiff complains in tbis action. So it seems clear under the findings of tbe jury that the plaintiff was not permanently injured, and in the absence of permanent injury the damages are excessive.

It is claimed on behalf of tbe respondent that an inference of negligence arose because of defect in the controller which caused it to blow out, hence tbe doctrine of res'ipsa loquitur applies; while on the part of the appellant it is insisted that no such inference can be drawn because it appears from the evidence that the controller might have acted as it did without any negligence whatever on the part of the appellant, and further that, if inference of negligence could be said to have arisen, still the inference was completely met by the testimony, therefore no case of negligence was made on this ground. Since there must be a new trial we shall not go into any discussion of this question further than to say that we are of opinion that the prima facie case made raised an inference o'f negligence, but that that inference was fully met and overcome by the testimony on the part of the appellant.

The only remaining question is whether judgment should be ordered for the defendant or the cause remanded for a new trial. It is strenuously insisted by counsel for defendant that there has been no negligence shown; therefore, the defendant being entitled to judgment below, this court should now order it. The majority of the court, however, are of the opinion that the case should go back for a new trial.

By the Court. — The judgment of the court below is reversed, and the cause remanded for a new trial.