Leemans v. Hines, 171 Wis. 278. fended the action and raised no objection that it was not properly brought against him, until after the rendition of the verdict, should this court upon this appeal reverse the judgment and order the dismissal of the action? While the position of this court is as stated in the Franke Case, it is to be remarked that judicial authority, so far as expressed, is in direct conflict upon the question of whether the action is properly maintainable against the railroad company or the director general of railroads. The ultimate decision of this question rests with the supreme court of the United States, and it has not yet spoken thereon. At least two federal courts (Mardis v. Hines, 258 Fed. 945; Haubert v. B. & O. R. Co. 259 Fed. 361), and perhaps others, have held that the action is properly maintainable against the director general. In this mooted state of the law the plaintiff elected to bring his action against the director general of railroads. He did this pursuant to an invitation by the director general himself, and the latter raised no objection to the right of the plaintiff so to do until after the rendition of the verdict, but went into court and defended the case upon its merits. Plaintiff has a judgment which the supreme court of the United States may declare to be valid. Under the circumstances we do not think any intermediate authority such as this court should deprive him of his judgment when the question of its validity is of such doubtful character. The situation presents a technical rather than a practical difficulty. Whether the action be properly maintainable against the one or the other, the federal statute plainly contemplates that damages of this nature are a part of the operating expense of the railroads while under federal control, and that judgments of this character are to be paid out of the revenues derived from their operation. There has been a judicial determination, in form at least, of liability and the amount of damages. This should suffice to satisfy the director general of the bona fides of the claim and his obligation to pay the same out of the funds under Leemans v. Hines, 171 Wis. 278. his control. It was within his discretion to settle the claim without suit. The judgment having been rendered in an action instituted and prosecuted in strict compliance with his own order, it is not to be assumed that he will repudiate it. We think the judgment should stand. It is urged by appellant that the damages are excessive. His argument is based upon the assumption that the injuries consisted only of a simple fracture of the ulna of the arm and a complete recovery has been had. Among others, the following cases are cited to the point that the verdict is excessive for such an injury: Meracle v. Down, 64 Wis. 323, 25 N. W. 412; Collins v. Janesville, 107 Wis. 436, 83 N. W. 695; Rueping v. C. & N. W. R. Co. 116 Wiş. 625, 93 N. W. 843; Otto v. M. N. R. Co. 148 Wis. 54, 134 N. W. 157. These cases, and others cited, probably support the contention that $3,000 are excessive damages for a simple fracture of the ulna followed by complete recovery. The argument of appellant, however, entirely ignores the testimony of plaintiff's medical witness to the effect that there were two fractures, one at about the middle of the shaft and the other at the head of the ulna, and that the motion of the forearm is limited, having but about sixty-five per cent. of normal motion. Dr. Lohmiller testified: "I figure that his arm from the elbow up to the shoulder is about a sixty-five per cent. arm. That is, he can't button his collar or can't feel the back of his head. In my opinion there will be no improvement in the deformity." The jury had a right to believe this evidence, and if the facts were as testified to by Dr. Lohmiller the damages were not excessive. By the Court.-Judgment affirmed. State ex rel. Superior v. Duluth & S. B. Co. 171 Wis. 283. STATE EX REL. CITY OF SUPERIOR, Respondent, vs. DULUTH & SUPERIOR BRIDGE COMPANY, Appellant. March 12-April 6, 1920. Municipal corporations: Limits of power to make contracts: Authority to acquire easements for street purposes: Mandamus to compel bridge company to repair approach to bridge. 1. A contract by which a bridge company granted to the city of Superior an easement for a street over a strip of land leading from a public street to the approach of its bridge, and which obligated the city to maintain the roadway over the land, was beyond the powers conferred on the city and void, and gave the city no easement, where the strip was not dedicated as a street and the city did not lay out a street as provided in its charter. 2. Agents, officers, or even the city council of a municipal corporation cannot bind it by the assumption of powers not granted to it in express words or necessarily and fully implied in or incidental to the powers expressly granted, or essential and indispensable to its declared objects and pur poses. 3. Where the bridge company's refusal to repair the roadway was based on the void contract imposing such duty on the city, and it does not appear that the bridge company would refuse to keep the roadway in repair if not relieved of such duty by the contract, there was no such refusal to perform its legal obligations as entitled the city to compel performance by mandamus. 4. Mandamus will not lie to compel the company to pave and maintain the roadway in accordance with the city's demands, as the company might adopt a sufficient and appropriate manner of maintaining the roadway wholly different from that sought by the city. APPEAL from a judgment of the circuit court for Douglas county: W. R. FOLEY, Circuit Judge. Reversed. This action was brought by the city of Superior against the Duluth & Superior Bridge Company for a writ of mandamus to compel the defendant to pave a certain piece or strip of land described as the driveway between the bridge approach and Main street, Connors Point, in the city of Superior, and to pay the cost thereof. A map of the land concerned is attached for reference. State ex rel. Superior v. Duluth & S. B. Co. 171 Wis. 283. The petition for the writ alleges, in substance, that the Duluth & Superior Bridge Company was organized under the laws of this state to construct a bridge and approaches thereto over the St. Louis river between Wisconsin and Minnesota, and to operate the same as a means of traffic and communication by persons and traffic on foot, and by carriage, team, auto, street cars and steam cars; that in 1904 the company secured an act to be passed by Congress which authorized said company and its successors in interest to construct and maintain and operate a bridge and approaches thereto over the St. Louis river between the states of Wisconsin and Minnesota, extending from the northerly end of Connors Point, in Wisconsin, to Rice's Point, opposite, in the state of Minnesota; that the land on Connors Point in the state of Wisconsin and on Rice's Point in the state of Minnesota, in and for a long time prior to said time, was platted, and there was a public street and highway built, laid out, and extending lengthwise of said point; that the act of Congress authorized the Bridge Company to construct and maintain the bridge from such points between Connors and Rice's Point as the Bridge Company might select and determine; that, acting under and by authority of this act of Congress, the Bridge Company built and constructed a bridge and approaches thereto from a point selected by it on Rice's Point to a point selected by it on Connors Point, and through and by virtue of condemnation proceedings acquired land to approach the bridge and connecting it with Main street on Connors Point, at a point some distance from the end of Connors Point, and from the end of said platted street, and improved such bridge and approach thereto connecting the same with said Main street on Connors Point; that thereafter said bridge and approaches thereto, including the strip of land so condemned over and through private property from the end of the bridge structure to and connecting with Main street at the point selected by the Bridge Company, have been largely used for traffic for and by dif |