Champane v. La Crosse City R. Co. 121 Wis. 554.

This is an action for personal injuries resulting from a fall from one of defendant's street cars in the city of La Crosse. Sophia Champane, accompanied by her mother, was a passenger on the car on the 3d day of April, 1901. She desired to get off the car at the intersection of George and Gillett streets, and would, according to custom, alight at the north line of the intersection of the streets. Plaintiff testified that she notified the conductor of her wish to get off, that the car stopped at the crossing, and that she was in the act of stepping off, when the car started with a sudden jerk, which caused her to be thrown to the ground. Her mother accompanied her on the trip, but did not attempt to get off the car at the crossing in question. She testifies that the car stopped; that two passengers arose and left the car at the crossing; that her daughter, the plaintiff, immediately arose and followed them, but that the car started while she was in the act of stepping from the car step to the street; that after the car had passed on for a considerable distance she observed plaintiff in the act of rising from her fallen position in the street and going to the sidewalk. The evidence of four other passengers is that the car was in motion when plaintiff arose to leave the car, and that she stepped off the car while it was in motion. There were two conductors on the car, who testify that she left the car while it was in motion. A witness upon the street stated that she observed plaintiff in the act of getting off the car, and that the car had been started from the crossing and had moved for some distance before she fell. There was evidence tending to show that plaintiff fell off the car at a distance of from forty to sixty feet beyond the crossing.

The jury returned a general verdict finding for the plaintiff, and assessing her damages at the sum of $1,225. Before verdict, defendant moved for a direction of a verdict in its favor. The motion was denied. After verdict, the defendant moved for a new trial upon the ground, among others, that

Champane v. La Crosse City R. Co. 121 Wis. 554.

the verdict was contrary to the law and the evidence and that it was therefore perverse. This motion was denied. Judgment was awarded plaintiff for the amount of the damages found by the jury and for costs. This is an appeal from that judgment.

For the appellant there was a brief by Woodward & Lees, and oral argument by G. M. Woodward.

For the respondent there was a brief by Morris & Hartwell, and oral argument by Thomas Morris.

SIEBECKER, J. The first exception urged is that the court erred in submitting the case to the jury upon the evidence. It is contended that the plaintiff arose from her seat and got off the car while it was in motion, and that the evidence leaves no room for conflicting inferences upon this question. This claim is based upon the assumption that plaintiff's testimony and that of her mother, tending to show that she had nearly gotten off the car while it stopped, is against the reasonable probabilities and the overwhelming preponderance of the evidence.

From the testimony of plaintiff and her mother it ap peared that plaintiff gave notice to the conductor that she wished to get off the car at the Partridge drug-store crossing, this being the north crossing of Gillett street; that the car stopped; that she arose from her seat, followed two passengers out of the door to the platform, and was in the act of alighting from the last step when the car started, and that this caused her to fall onto the street within a few feet of this crossing. This evidence is clearly contradicted by the testimony of the two conductors and five other witnesses who observed the accident. The finding of the jury was affirmed by the trial court in passing upon the motion for a new trial. The evidence in itself is not so inherently improbable, nor so completely overcome by the testimony of the other witnesses and the facts and circumstances of the case, as to jus

Champane v. La Crosse City R. Co. 121 Wis. 554.

tify this court in concluding that it furnishes no support for the verdict. The testimony of plaintiff and her mother, if credible, furnishes a sufficient and legal basis for the company's liability. It is not impeached except by the testimony of the other witnesses. The situation thus presented is one peculiarly depending upon the weight of the evidence and the credibility of the witnesses. We cannot say that the trial court erred in refusing to set aside this verdict as against the evidence in the case. The case bears a close analogy to and comes within the ruling of Hardy v. Milwaukee St. R. Co. 89 Wis. 183, 61 N. W. 771, and subsequent cases approving the ruling in the Hardy Case.

The court gave the jury the following instruction:

"But if you believe that a reasonable stop was made that is, a stop for a reasonable length of time at or near Gillett. street, and that she had given no notice or signal that she desired to get off at this place, and shall further believe that afterwards, after it started, it occurred to her that she ought to have gotten off at this place at Gillett street or where it stopped, and shall believe that she attempted to go out of the car while it was in motion and after it had started again, and shall believe that by reason of its being in motion was the cause of her falling off, then she cannot recover in the action."

It is urged that this is misleading, in that the instruction includes elements wholly immaterial and not necessary to be passed upon by the jury to acquit defendant of liability. The court had given instructions upon this branch of the case in very positive and unqualified terms, stating that, if respondent undertook to leave the car after it had started and was in actual motion, she could not recover in the action. Different parts of the charge state the rule unqualifiedly that, if a passenger undertakes to alight from a car while in motion and is injured in getting off the car, he has no claim against the street car company for any damages so sustained. Taking these parts of the charge in connection with the part

Miller v. Hoeschler, 121 Wis. 558.

excepted to, we do not think the jury could have been misled in applying the correct rule to the facts found by them. By the Court. The judgment of the circuit court is affirmed.

MILLER, Respondent, vs. HOESCHLER, Appellant.

March 25-April 19, 1904.

Action, at law or in equity: Injunction: Threat of repeated trespass: Fences.

A court of equity will not interfere to prevent a mere threatened trespass upon land; but where, by reason of the continuous or repeated character of the threatened invasion, many actions at law would be necessary, in no one of which could compensation for the whole wrong be obtained, an action for an injunction may be maintained. So held, on demurrer to a complaint alleging that defendant had built a fence on plaintiff's land, cutting him off from access to a street; that plaintiff had removed the fence; but that defendant threatens to re-enter and reconstruct the fence as often as plaintiff removes it.

APPEAL from an order of the circuit court for La Crosse county: J. J. FRUIT, Circuit Judge. Affirmed.

The cause was submitted for the appellant on the brief of Doherty & Baldwin, and for respondent on that of John A. Daniels.

WINSLOW, J. This is an action in equity to enjoin the commission of repeated and continuous threatened trespasses upon real estate. A general demurrer to the complaint having been overruled, the defendant appeals. The complaint alleges that the plaintiff owns, occupies, and has record title to, certain lots in the city of La Crosse, and has occupied the same for many years as a homestead; also that plaintiff occupies, and, by adverse possession for more than twenty years, has title to, a certain described strip of land between said lots and Ninth street in said city, which constitutes a

Miller v. Hoeschler, 121 Wis. 558.

part of his said homestead and dooryard and constitutes his only means of access to said Ninth street; that defendant wrongfully entered on said strip in May, 1903, and constructed a wire fence on the side thereof nearest to plaintiff's house, thereby cutting off the plaintiff from the use of his dooryard and from all access to Ninth street from his said house; that plaintiff immediately removed said fence, but that defendant asserts and threatens that he will re-enter and reconstruct the fence as often as plaintiff removes same, and plaintiff fears that he will do so and thus cause plaintiff an irreparable injury and force the commencement of a multiplicity of trespass actions, unless the defendant be restrained from such acts.

The simple question presented is whether the complaint states a cause of action in equity, or, in other words, whether it appears therefrom that there is an adequate remedy at law. The principle that a court of equity will not interfere to prevent a mere threatened trespass upon real estate is very ancient and well understood. The idea is that such a wrong is merely temporary in its nature, and, under all ordinary circumstances, may be fully recompensed by an award of damages; hence that the legal action affords perfect and adequate relief. While this rule is still in force, the tendency of recent decisions is to enlarge, rather than to narrow, the class of cases in which a court of equity will interfere to prevent threatened trespass. Not only will it act where the threatened trespass will work irreparable injury to the property itself, amounting essentially to destruction thereof, but also where, by reason of the continuous or repeated character of the threatened invasion, many actions at law would be necessary to be brought, in no one of which could compensation for the whole wrong be obtained. In such cases the legal remedy is held to be inadequate. It is simply an application of the very old principle that equity will interfere to prevent a multiplicity of actions at law. 3 Pomeroy, Eq. Jur.