Krause v. City of Merrill

Cassobay, C. J. The facts in this case are practically undisputed, and substantially as mentioned in the foregoing statement. In granting a nonsuit, the trial court assumed that the evidence was sufficient to take the case to the jury on the question as to whether the traveled track west and north of Division street was a public highway, and, if so, whether it was defective. The nonsuit was granted on the ground that after driving about twelve feet north of the southwest corner of the shed the deceased, as indicated in the statement of facts, voluntarily turned his team, which was going directly north, around to the west, and then drove the same directly west, over and down the embankment, to the bottom, near to the spur track; and then, instead of attempting to extricate himself from danger, he drove in a southeasterly direction, and parallel to the spur track, with the off wheels at the bottom of the embankment and the near wheels so elevated that, after driving a few feet, the wagon tipped over toward the spur track, and caught him under the box in such a way that he expired before morning. The evidence is uncontradicted [530] that he had a very slow, gentle team; that although he had been drinking more or less, yet that he was competent to manage his team, and at no time lost control of his team. This is apparent from the manner of going down the embankment with the three kegs of beer rolling about in the wagon box, and the deceased remaining on or in the box until the wagon tipped over and onto him. Nothing need be added to the undisputed evidence. From that it appears that the deceased was guilty of contributory negligence, and hence that the nonsuit was properly granted. If authority is needed to support so plain a proposition, we would cite the following: Hawes v. Fox Lake, 33 Wis. 438; Goellz v. Ashland, 75 Wis. 642, 44 N. W. 770; Welsh v. Argyle, 89 Wis. 649, 62 N. W. 517; Stricker v. Reedsburg, 101 Wis. 457, 77 N. W. 897. By the Court. — The judgment of the circuit court is affirmed.