Deuster v. Milwaukee Street Railway Co.

Cassoday, J. April 29,1892, tbe defendant was tbe owner of and operating an electric street railway upon Multwonago road in Wauwatosa, being a continuation of its line on National avenue in Milwaukee, and tbe same runs east and west, and there was a double track thereon. There is evidence tending to prove that on tbe afternoon of tbe day mentioned tbe plaintiff was riding in a buggy drawn by a 'single borse, obtained from tbe Every, with bis nephew, driving west on tbe north side of that road; that when they reached a point- about one block from tbe west end of tbe track tbe plaintiff saw an electric car standing on the west end of tbe south track, and at tbe same time beard a car approaching from tbe east on tbe north track; that tbe road at that point bad been newly graded, and was very muddy, and tbe space where they were driving only about -eight feet wide; that tbe car track was high above tbe ground, and very rough; that as tbe car from tbe east came very close to them tbe borse began to quiver, and tbe car then stopped, and tbe plaintiff jumped out and took tbe borse by tbe bridle and led him onto tbe track, intending to go across tbe same; that as be got onto tbe track tbe borse gave a little jump; that when be got between tbe two tracks tbe borse made another jump; that just at that time the plaintiff was struck by tbe car coming from tbe west •on tbe south track, and was severely injured. Without going into details, we have, after careful consideration, reached tbe conclusion that, under all tbe circumstances, it was properly left to tbe jury to determine whether tbe defendant’s servants in charge of tbe car which struck tbe [194] plaintiff were guilty of negligence, and. also whether the-plaintiff was guilty of contributory negligence. The case-seems to be very much the same in principle as Little v. Superior R. T. R. Co. 88 Wis. 402; Thoresen v. La Crosse C. R. Co. 87 Wis. 597; Butler v. M. & St. P. R. Co. 28 Wis. 487. It follows from what has been said that there was no error-in refusing to grant a nonsuit or to direct a verdict in favor of the defendant. It is said that portions of the charge are erroneous. But. the record here certified contains no exception to any portion of the charge. This is conceded, but it is claimed that'the proposed bill of exceptions did contain such exceptions,, and that the trial judge improperly struck out such exceptions and eliminated the same from the proposed bill of exceptions, and hence that this court should consider such exceptions the same as though they were incorporated in the-bill of exceptions. In other words, this court is asked, upon affidavits, to settle the bill of exceptions as it is claimed it-should have been settled by the trial judge; but this court, in the exercise of its appellate jurisdiction, has no authority in such a case to make a new bill of exceptions, in whole or in part, nor to supersede the one already certified. In other-words, the facts certified in a bill of exceptions are verities,, so far as this court is concerned. We have even gone so far as to hold that in a particular case we cannot suspend the-rules of the circuit court in respect to the preparation and settlement of bills of exceptions. Baker v. State, 84 Wis. 584. Eor a much stronger reason we cannot suspend the statutes-in that regard. Secs. 2869-2874, R. S. Upon, this record we cannot regard the damages as excessive. By the Court.— The judgment of the superior court of Milwaukee county is affirmed.