396

NEGLIGENCE AND COMPENSATION CASES ANNOTATED. [Wis.

can be drawn therefrom, are to the effect that, if there was a change, it was a slow and gradual one.

On the evening of the 11th plaintiff took a Turkish bath at Minneapolis, and remained in the bathrooms all night. During the day of the 12th he went to different offices and mills in the city of Minneapolis. There was a light shower during the afternoon, but he was not exposed to it. There is an entire absence of evidence as to what exposure, if any, plaintiff had been subjected to previous to the time he left Escanaba for Minneapolis on the night of the 10th. He testified, however, that he never felt better than he did when he left home, and that he felt all right when he left Minneapolis on Saturday evening at 6:30.

The above is a fair summary of all the material evidence concerning the conditions under which plaintiff slept in the car. If any legitimate inference can be drawn there from, it must be to the effect that plaintiff's pneumonia was not caused by the atmospheric conditions that obtained in the car while he slept, or while he was awake. But it is not necessary, in order to sustain the action of the trial court, to draw any such inference. If it appears that it cannot be said with any reasonable certainty that plaintiff's pneumonia was caused by the atmospheric conditions of the car, or that they were such as to render it dangerous for healthy persons to sleep therein, protected as the passengers were, then the court's action must be sustained. Verdicts cau

by remaining on the train after he had an opportunity to get off, or by neglecting to procure wraps from his trunk in the baggage car, or by taking off his overcoat to give to his wife who was greatly in need of the same, or by his wearing inadequate clothing to meet the demands of the climate and season of the year. Taylor v. Wabash R. Co. (Mo.), 38 S. W. 304, 42 L. R. A. 110 (1896).

The failure of a woman passenger to leave an unheated car in which she was riding and enter another car attached to the train, was held in Texas & N. O. R. Co. v. Harrington, 44 Tex. Civ. App. 386 (1906), not to constitute contributory negligence defeating her right to recover for injuries sustained in consequence of the failure of the carrier to heat the coach, where it appeared that a smoking car, sleeper.

and coach set apart for colored passengers were warm, but it was not shown that she knew that a sleeping car was attached to the train or that the other two coaches were warm, and no one to whom she made complaint about the condition of the car told her to go into the other cars, and she could not, without violating the law, enter the negro coach, and was not permitted, being a woman, to enter the smoking car.

In an action against a railroad company to recover damages for personal injuries caused by contracting a severe cold while traveling, the failure of the plaintiff, who was inexperienced in traveling, to call the attention of the employees of the carrier to the cold condition of the car, does not preclude a recovery; but the effect of such failure, as bearing upon the ques

not rest upon mere conjecture. They must be bottomed at least upon a reasonable certainty. In this case, under the whole evidence it is a matter of pure conjecture where plaintiff contracted his pneumonia, and the trial court properly amended the verdict and directed judg. ment for the defendant.

BY THE COURT: Judgment affirmed.

tion of contributory negligence, should be left for the jury to determine. Hastings v. Northern Pac. R. Co., 53 Fed. 224, 10 Am. Neg. Cas. 689n (1892). A person who had not enlisted as a member of the state guards, but who accompanied them at the request of the captain to make the quota of the company complete, and who had the right to leave the passenger coach occupied by the company after discov

ering its filthy condition and insufficient heating, without subjecting himself to military discipline, and to take passage in another car free from such conditions, but who elected to ride with the other members of the company, cannot recover damages in consequence of catching a severe cold. Louisville & N. R. Co. v. Scalf, 33 Ky. Law Rep. 721 (1908).

MUNROE et al. v. CITY OF CHICAGO.

[U. S. Circuit Court of Appeals, Seventh Circuit, E. D. Northern District, Illinois, January 2, 1912.]

194 Fed. 936.

Collision-Bridge-Liability.

A steamer which has signaled for a bascule bridge over the Chicago River to open, is not at fault for proceeding at slow speed, upon the assumption that the bridge will open, nor in continuing to approach until but 200 or 300 feet away, in the absence of any warning that the bridge could not or would not be opened, where the master of the steamer could hear others calling upon the bridge tender to open the bridge, so as to bar a recovery for damages sustained by the boat when it came into contact with the bridge by being carried along by her own momentum and the current of the river.

Appeal from the District Court of United States for the Eastern Division of the Northern District of Illinois (186 Fed. 564), in a suit in admiralty to recover damages sustained by a steamer caused by a collision with a bridge alleged to be due to the negligence of the City of Chicago in maintaining and operating such bridge. Reversed.

For appellant-Charles E. Kremer.

For appellee-Wm. H. Sexton.

LIBEL.

In the District Court of the United States, for the Northern District of Illinois, Northern Division.

To the Honorable, the Judge of said Court:

The libel of William Munroe and the Michigan Trust Company, executors of the estate of Thomas Munroe, William Brinen, A. F. Temple and W. J. Brinen, of Muskegon, Michigan, against the City of Chicago, in a cause of collision civil and maritime, alleges as follows, to wit:

1st: That at the different times hereinafter mentioned and now the above named libelants were and are the owners of the steamer George C. Markham, a vessel of more than 20 tons burden, enrolled and licensed

NOTE.

For other cases involving the Lia

bility of Municipal Corporations for

Injuries to Vessels Colliding with Bridges, see 4 Am. Neg. Rep. 96, and 7 Am. Neg. Rep. 111.

for the coasting trade and employed in commerce and navigation upon the Great Lakes and waters emptying into and connecting with the

same.

2nd: That at the different times hereinafter mentioned, the City of Chicago was a municipal corporation, created and existing under the laws of the State of Illinois, and was the sole owner of a certain bascule bridge erected by it across the south branch of the Chicago River at Taylor street, in the City of Chicago, said bridge being operated by the servants and employees of the said City of Chicago and used for the purpose of carrying persons and vehicles across the said river at Taylor street.

3rd: That on the 19th day of October, 1909, at about 4 o'clock A. M., said steamer George C. Markham, with her lights properly displayed and burning, laden with a cargo of lumber, was bound up the south branch of the Chicago River to deliver the said cargo at a point above the said bridge. That when the said steamer arrived at a point about a quarter of a mile below and to the northward of the said bridge her whistle blew three blasts as a signal for opening the Taylor street bridge across the said south branch of the river. That after the steamer had proceeded slowly for a distance of about her length, not hearing any signal from the said bridge, the steamer again blew her whistle as a signal for the said bridge to open, and proceeding still a little farther the signal was again repeated. Receiving no response to the last signal indicating that the said bridge would open and though no signal was displayed or given indicating that it would not open, fearing that it might not be opened in time to permit the said steamer to safely pass under the same, the steamer's engine was reversed to check her headway, and in this way she approached the bridge very slowly until she arrived at a point when it was no longer safe to proceed as the bridge could not be opened in time to avoid a collision, whereupon the engine was backed full speed and every effort made to stop the headway of the steamer, and although this was stopped the current carried her against the bridge which resulted in breaking her foremast, pilot house and doing other damage to her, but without inflicting any damage upon the said bridge.

4th: That after the said collision the said bridge was opened and without difficulty and the steamer passed on through the same.

5th: Libelant further alleges that before and at the time of the said collision, the atmosphere was clear and the said steamer and her lights could have been seen a long distance away below the said. bridge, and that signals were blown in the usual way at ample and sufficient distance to enable the said bridge to be raised without haste

or difficulty, and had the same been raised even after the third signal for the said bridge to open, no collision could have occurred.

6th: That the said collision was due to the fact that the said bridge tenders were not awake or attentive to their duties, but, on the contrary, were negligent and careless in the performance of their business and neglected to open the said bridge when signaled to do so.

7th: That the libelant has been damaged in the cost of repairs and in the loss of the use of said steamer while being repaired, and that further repairs will be necessary to restore said steamer to the condition in which she was before the collision, all of which damages amount to the sum of One Thousand Dollars ($1,000).

8th: That demand has been made upon the said City of Chicago for payment of the said damages, but the servants of the said City of Chicago in charge of the said bridge deny all liability and the said City of Chicago has therefore refused to pay any part of the said damages.

Wherefore, libelant prays that process in due form of law may issue against the said City of Chicago and that it may be cited to appear and answer all and singular the matters and things hereinabove set forth, and that this court would be pleased to pronounce for libelant's aforesaid demand and decree the same paid, with costs and interest, and for such other and further relief and redress as in law and justice libelant is entitled to receive.

ANSWER.

The answer of the City of Chicago, a municipal corporation, duly organized and existing under and by virtue of the laws of the State of Illinois, to the libel of William Munroe and Michigan Trust Company, executors of the estate of Thomas Munroe, William Brinen, A. F. Temple and W. J. Brinen, alleges as follows:

(1) This respondent is not advised as to whether or not the persons named as libelants or any or either of them were the owners of the steamer "George C. Markham" at the time and times in said libel mentioned, and therefore, asks strict proof thereof.

(2) This respondent, further answering, admits that at the time in said libel mentioned it was a municipal corporation and that it was the sole owner of the bascule bridge erected across the south branch of the Chicago River at Taylor street in the City of Chicago, and that said bridge was being operated by persons hired and paid by the City of Chicago, but charges the fact to be that said bridge was a part of the public highway of the State of Illinois and therefore charges the