ferred upon them by said Bayfield county court [itowoc G. Co. v. Tax Commission et al., 152 as aforesaid. N. W. 848. "(12) The income tax assessor of said Bayfield [2] The income under consideration was county in form levied and assessed a tax on an income of $14,391 for the first nine months of not derived from property located or busithe year 1911 against said Pishon as such trus-ness transacted in the state of Wisconsin, tee, said sum being the total income of said es- and the owners of the property never residtate during said period, and the amount of said ed in Wisconsin. But it is contended by aptax, as extended upon the tax roll for the year 1913, being $498.46; and for the year ending pellant that the property was constructively October 1, 1912, said income tax assessor in in Wisconsin because the Bayfield county form levied and assessed a tax against said Hi- court in Wisconsin was administering the ram L. Pishon as such trustee on an income of We do not think the statute is ca$20,390, said sum being the total income of said trust. estate for said year, and the tax upon said in-pable of such construction. The language come, as extended upon the tax roll for the of the statute must be given its plain, oryear 1913, being $858.40. No deduction was dinary meaning. Van Dyke v. Milwaukee, made for exemption in either case. If said income was taxable, said taxes became due and 159 Wis. 460, 146 N. W. 812, 150 N. W. 509; payable January 31, 1914. Payment thereof U. S. G. Co. v. Oak Creek, 153 N. W. 241. was demanded of said Pishon, who refused to pay the same or any part thereof. (13) Neither the said trustee, Abby L. Benjamin, nor said Hiram L. Pishon, nor any one in behalf of either of them, at any time appeared before the county board of review in the matter of the assessment of the tax upon the income of said trust estate, nor did either of them nor any one for them ever appeal from the decision of the county board of review in such matter. "(14) Nothing contained in the ninth paragraph of this stipulation shall be so construed as to prevent the court from finding that said income or a part thereof was derived from property constructively located or business constructively transacted in said state or within its jurisdiction by reason of the fact that said trustee was appointed by and is amenable to the county court of said Bayfield county." A. M. Warden, of Washburn, and John J. Fisher, of Bayfield, for appellant. William F. Shea, of Ashland, for respondent. KERWIN, J. (after stating the facts as above). Upon the undisputed facts we think the judgment below must be affirmed. [1] The part of the statute relating to the question before us reads: "The tax shall be assessed, levied and collected upon all income, not hereinafter exempted, received by every person residing within the state, and by every nonresident of the state upon such income as is derived from sources within the state or within its jurisdiction. So much of the income of any person residing within the state as is derived from rentals, stocks, bonds, securities or evidences of indebtedness shall be assessed and taxed, whether such income is derived from sources within or without the state: Provided, that any person engaged in business within and without the state shall, with respect to income other than that derived from rentals, stocks, bonds, securities or evidences of indebtedness, be taxed only upon that proportion of such income as is derived from business transacted and property located within the state, which shall be determined in the manner specified in subdivision (e) of section 1770b, as far as applicable." Stats. 1911, § 1087ma, subd. 3. This statute imposes a tax only upon such part of a nonresident's income as is derived from sources within the state or within its jurisdiction. It is quite obvious that the purpose of the statute is to tax a nonresident upon his income derived from sources within the territorial jurisdiction of the state. Income Tax Cases, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164; State ex rel. Man The words of the statute are unambiguous, and this court must construe them according to their plain, ordinary meaning. RogerRuger Co. v. Murray, 115 Wis. 267, 91 N. W. 657, 59 L. R. A. 737, 95 Am. St. Rep. 901; Ashland v. Maciejewski, 140 Wis. 642, 123 N. W. 130; Gilbert v. Dutruit et al., 91 Wis. 661, 65 N. W. 511. Some other questions are discussed by counsel in their brief, but, in the view we take of the case, it is not nec essary to consider them. The judgment is affirmed. PAWLAK v. HAYES. (Supreme Court of Wisconsin. Feb. 22, 1916.) 1. MASTER AND SERVANT 872, New, vol. 16 Key-No. Series-WORKMEN'S COMPENSATION LAW EMPLOYE'S RIGHT AGAINST THIRD PERSON—ASSIGNMENT-ELECTION. Workmen's Compensation Law (St. 1915, § 2394-25, subd. 1) provides that a claim against an employer for compensation for injury or death shall operate as an assignment of any cause of action in tort which the employé may have against any other party for such injury, and subdivision 2 provides that an employe's claim against a third person for damages by reaclaim for compensation against the employer. son of an accident shall operate to waive any An employé who with his employer was under, the provisions of the law made a claim against his employer and received compensation and part of his medical expenses, and thereafter, on discovery of the negligence of defendant, a physician whom he had employed refused to accept therefor compensation from the employer against the physician for malpractice, that the and offered to return it. Held, in his action statute contemplated the coexistence of two remedies, either of which the employé might pursue, that the claim against the employer operatthe claim was made, so that, on learning of deed to assign only cause of action existing when fendant's negligence, he might elect to hold his employer, or to release his employer and hold defendant. 2. MASTER AND SERVANT 872, New, vol. 16 Key-No. Series-ACTION FOR INJURY-LIABILITY-AGGRAVATION OF INJURY. 1915, § 2394-9, subd. 1), requiring an employer Under Workmen's Compensation Law (St. to furnish a physician, and making him liable for the value of the physician's services within 90 days, the employer is liable for any aggravation of the injury caused by the negligence of the physician treating the employé during such time. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Chippewa Coun-two remedies must coexist in order to give ty; James Wickham, Judge. the employé an election. That the statute contemplated an election is made clear by subdivision 2 of the same section, which provides that: Action by Steve Pawlak, by guardian, against Charles A. Hayes. From an order sustaining a demurrer to his complaint, plaintiff appeals. Order reversed, and cause remanded, with direction to overrule the de murrer. Action to recover damages for malpractice. Plaintiff alleges that on the 5th day of March, 1914, while in the employ of the John "The making of a claim by an employé against a third party for damages by reason of an accident covered by sections 2394-3 to of any claim for compensation against the em2394-31, inclusive, shall operate as a waiver ployer." the option of pursuing either remedy, it deThus, while the statute gives the employé prives him of all rights under the one he does not pursue as soon as he makes his election by assigning to the employer his S. Owen Lumber Company, a log rolled onto him, and he sustained a fracture of the leg, that he employed the defendant to treat him for the injury, and that by reason of the negligence and lack of skill of the defendant in the treatment given him within a couple cause of action against the third party if he of weeks after the injury and subsequent proceeds against the employer, and by rethereto the leg was improperly set and treat-leasing the employer if he proceeds against the third party. ed to the damage of plaintiff. The complaint further alleges that at the time of the in It does not appear that at the time plain jury both plaintiff and his employer, the tiff was injured there was any negligence John S. Owen Lumber Company, were under by any third party or, indeed, by any one. This being so, plaintiff had no election to the provisions of the Workmen's Compensamake when he filed his claim under the stattion Act, and that plaintiff made a claim against his employer under the act, and received compensation and part of his medical expenses from March 5 to about August 20, 1914; that as soon as he discovered the neg-plaint discloses. He could not at that time ligence of the defendant he refused to accept any more compensation from his employer, and he offers to return the same or so much thereof as the court may adjudicate. The defendant entered a general demurrer to the complaint, and from an order sustaining the same, the plaintiff appealed. A. L. Smongeski, of Stevens Point, for appellant. Markham, Freeman & Cudahy, of Milwaukee, and Timothy Brown, of Madison, for respondent. VINJE, J. (after stating the facts as above). [1] The circuit court sustained the demurrer to the complaint on the ground that, when plaintiff filed a claim against his employer, his cause of action for the injury received and the proximate results thereof were assigned to his employer by virtue of subdivision 1 of section 2394-25, which reads as follows: "The making of a lawful claim against an employer for compensation under sections 2394-3 to 2394-31, inclusive, for injury or death of his employé shall operate as an assignment of any cause of action in tort which the employé or his personal representative may have against any other party for such injury or death; and such employer may enforce in his own name the liability of such other party." It is quite evident from the reading of this subdivision that it contemplates the existence at the same time of two remedies either of which the employé may pursue. He may invoke the statutory remedy against his employer, or the common-law remedy against the third person who by his negligence caused or contributed to his injury. McGarvey v. Independent O. & G. Co., 156 Wis. 580, 146 N. W. 895. It is equally obvious that these 156 N.W.-30 ute against his employer, and no cause of action passed to the latter. The employé could proceed only against his employer. There was no one else liable so far as the com be required to make an election because the facts giving rise to an election were not then in existence, nor could they be reasonably anticipated because malpractice is the exception not the rule. No duty or opportunity to elect could arise until the facts creating the liability of the third person came into existence. In this case they were not known to plaintiff until about August 20th, and there is nothing to show he was negligent in not sooner ascertaining them. As soon as they came to his notice he promptly elected to hold the third person whose alleged negligence aggravated his first injury, and thereby he waived further liability against his employer. Section 2394-25, subd. 2. The making of a lawful claim against the employer eo instanti operates to assign to him any cause of action the employé may then have against a third party. McGarvey v. Independent O. & G. Co., 156 Wis. 580, But it does not assign a 146 N. W. 895. cause of action then not in esse. It merely acts upon what is in existence at the time the lawful claim is made. When the negligence of a third party to the knowledge of the employé, who exercises ordinary diligence in respect thereto, intervenes, his right to an election arises-not before then. It was therefore competent for plaintiff, when he first learned of the negligence of the defendant, to elect to hold him and release his employer, or to hold his employer under the provisions of the Compensation Act. [2] In a common-law action for negligence it has been held that the defendant is liable for the aggravation of the injury caused by the malpractice of the physician called by plaintiff to treat it, where it is shown that he exercised ordinary care in the selection of the physician. Selleck v. Janesville, 100 Wis. 157, 75 N. W. 975, 41 L. R. A. 563, 69 Am. St. Rep. 906. The Compensation Act requires the employer to furnish a physician, and makes him liable for the value of the physician's services for not to exceed 90 days. Section 2394-9, subd. 1. This, we think, implies liability for any aggravation of the injury caused by the negligence of the physician treating the employé during such time. Whether the employer would be liable for malpractice after the expiration of 90 days is not decided. The negligent treatment here is alleged to have begun about 2 weeks after the accident. Order reversed, and cause remanded, with directions to overrule the demurrer and for further proceedings according to law. MARSHALL, J., took no part. = Suit by C. F. Warden against the City of Elroy and others. Judgment for defendants, and plaintiff appeals. Affirmed. J. T. Dithmar, of Elroy, for appellant. Grotophorst, Evans & Thomas, of Baraboo, and H. C. Rowan, of Elroy, for respondents. TIMLIN, J. [1] The appellant, an alderman of the city of Elroy and a resident and free holder and taxpayer therein, brings this suit to enjoin W. H. Hart and Hugh Campbell from making an excavation in a public street of that city for the purpose of constructing a platform scales under permit from the common council of the city. He makes the city of Elroy a party, but asks no relief against it. The answer, in substance, avers a permit from the common council of the city of Elroy to construct in the street a platform scales and a release by the Chicago & Northwestern Railway Company, which is the abutting owner, and that the plaintiff had no such interest in the matter as entitled him WARDEN v. CITY OF ELROY et al. to maintain the action. The findings of the (Supreme Court of Wisconsin. Feb. 22, 1916.) court sustained the answer, and also found 1. MUNICIPAL CORPORATIONS 680, 681 on sufficient evidence that the platform USE OF STREET-TEMPORARY OBSTRUCTION- Scales, when completed, would not, in any SCALES. A city has inherent power to permit a tem-wise, obstruct public travel upon or the pubporary use of part of the street by abutting own- lic use of the street in question. For some ers, such as the making of an excavation in a purposes which do not materially interfere public street in constructing platform scales with the public use of the streets, a city has which does not materially interfere with the inherent power to permit temporary use of public use of the street; Laws 1913, c. 382, relating to the granting of privileges in streets, part of the street by abutting owners, or being prospective and not applying. those acting for them; such as, deposit of building material, the use of an excavated area under a sidewalk, the maintenance of signs, or the like. The subsidewalk excavation is spoken of in Burnham v. Milwaukee, 155 Wis. 90, 143 N. W. 1067, as a"convenience of a temporary character which he was rightfully enjoying, and had the right to enjoy until such time as the city, representing the state in its paramount right to the use of the street, should, by proper ordinance or resolution, terminate his right of enjoyment." [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1459-1466; Dec. Dig. 680, 681.] 2. MUNICIPAL CORPORATIONS 690 USE OF STREET-TEMPORARY OBSTRUCTION-REVOCA TION. Such temporary privilege or permit is subject to revocation at any time at the pleasure of the city. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1490, 1491; Dec. Dig. 690.] 3. MUNICIPAL CORPORATIONS 993- TAXPAYER'S ACTION-GROUNDS. That one is a taxpayer gives him no standing in a court of equity to regulate or control municipal affairs, except in cases where the administrative act is unlawful and he is threatened with or suffers a consequent pecuniary loss. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 2158-2161; Dec. Dig. 993.] 4. MUNICIPAL CORPORATIONS 697, 698 ACTION BY PRIVATE A private person cannot maintain an action for damages from the obstruction of a public highway, or a suit in equity to prevent such obstruction, unless he has sustained damages differing, not merely in degree, but in kind, from the damage sustained by the general public; and the mere fact that such person is an alderman adds nothing to his right. This species of usufruct is also recognized in McClure v. Sparta, 84 Wis. 269, 54 N. W. 337, 36 Am. St. Rep. 924. In Emerson v. Babcock, 66 Iowa, 257, 23 N. W. 656, 55 Am. Rep. 273, speaking of a platform scales in the street, the court says: scales in the street for a time, the privilege "If the plaintiff was permitted to maintain his must be regarded as a mere license which may be terminated at any time, and it is immaterial whether the erection in the street amounts to a nuisance.' [2] That is, it is immaterial as regards the power of the city to have it removed. Chapter 382, Laws of 1913, is prospective in its operation, and does not apply in this case. Lakeside Lumber Co. v. Jacobs, 134 Wis. 188, 114 N. W. 446, 126 Am. St. Rep. 1023, is not in point because there the parties sought to uphold by action a legal right founded upon a grant which the municipality had no power Appeal from Circuit Court, Juneau Coun- to make. Here we may assume the municity; James O'Neill, Judge. pality has no power to grant the right to [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1502-1506; Dec. Dig. 697, 698.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 278-INJURIES TO maintain a platform scales in the streets. 2. MASTER AND SERVANT SERVANT-ACTIONS-EVIDENCE. In an action for injuries to an employé struck by an engine, evidence held to warrant the jury in finding that the bell did not ring, or that if it did ring, it was only a low muffled stroke, not sufficient to give warning to the employé. [3] The next question is with reference to his right to do so. Averment and proof that the appellant is a taxpayer gives him no standing in a court of equity to regulate or control municipal affairs, except in cases where the administrative act is unlawful and the taxpayer is threatened with or suffers a pecuniary loss in consequence thereof. Zettel v. West Bend, 79 Wis. 316, 48 N. W. 379, 24 Am. St. Rep. 715. [4] A private person cannot maintain an action for damages resulting from the obstruction of a public highway or a suit in equity to prevent such obstruction, unless it appear that he has sustained damages differing, not merely in degree, but in kind, from the damage sustained by the general public. Tilly v. Mitchell & Lewis Co., 121 Wis. 1, 98 N. W. 969, 105 Am. St. Rep. 1007; Baier v. Schermerhorn, 96 Wis. 372, 71 N. W. 600; Mahler v. Brumder, 92 Wis. 477, 66 N. W. 502, 31 L. R. A. 695; Stone v. Oconomowoc, 71 Wis. 155, 36 N. W. 829; Bell v. Platteville, 71 Wis. 139, 36 N. W. 831. The mere fact that appellant is an alderman cannot, under the circumstances, add anything to his right to maintain the action. Aldermen must, generally speaking, govern the city through the regular channels of city government, not by adversary proceedings in the courts. If appellant's official status as a single alderman were relevant, then his vote as alderman in favor of the permit in question might also be relevant, but neither of these is relevant. He cannot maintain this action because he suffers no pecuniary loss in consequence of the act sought to be enjoined, and because the wrong, if wrong it is, is to the general public, and not in the least special or peculiar to the appellant. Judgment affirmed. MARSHALL, J., took no part. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. 278.] 3. MASTER AND SERVANT 278–INJURIES TO SERVANT-ACTIONS-EVIDENCE. evidence held to authorize the jury to find that Servant, Cent. Dig. §§ 954, 956-958, 960-969, The starting of an engine across a bridge upon which either the fireman or engineer could have seen plaintiff, without signal, warning or lookout, would constitute negligence, regardless of misinformation to plaintiff that the engine would not go further. Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 129-INJURIES TO SERVANT-PROXIMATE CAUSE OF INJURY. Under the express provisions of Act Cong. April 22, 1908, c. 149, § 1, 35 Stat. 65 (U. S. Comp. St. 1913, § 8657), it is sufficient to render an interstate carrier liable to an employé if the injury results in whole or in part from the negligence of any of the officers, agents, or employés of the carrier. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. 129.] Appeal from Circuit Court, Brown County; Henry Graass, Judge. Action by Michael Molzoff against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial. This action was brought to recover for personal injuries sustained by plaintiff while in the service of the defendant. After the evidence was in the court below directed a verdict for defendant. Judgment was entered accordingly, dismissing the complaint, MOLZOFF v. CHICAGO, M. & ST. P. RY. from which judgment this appeal was taken. CO. (Supreme Court of Wisconsin. Feb. 22, 1916.) 1. MASTER AND SERVANT 278–INJURIES TO SERVANT-ACTIONS-EVIDENCE. In an action for injuries to an employé of an interstate carrier, evidence held to authorize the jury to find that the engineer and fireman knew that plaintiff rode on the footboard of their engine, a short time before his injury, on his way to his work. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. $$ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. 278.] Carl Bong, of Green Bay (V. I. Minahan, of Green Bay, of counsel), for appellant. Greene, Fairchild, North, Parker & McGillan, of Green Bay, and C. H. Van Alstine and H. J. Killilea, both of Milwaukee, for respondent. KERWIN, J. Briefly stated, the negligence complained of is that the plaintiff was a "yard man" in the employ of the defendant, and that it was the duty of defendant For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to furnish a safe place for plaintiff to work | shop and was to call for them the next day; and warn him of dangers arising out of the he saw an engine at the water tank and was course of his employment; that defendant told by one of the brakemen in charge that failed in its duty, and in consequence plain- it was going east over the river; that the tiff was seriously injured; that on July 21, engine was backing up dragging some 14 or 1914, plaintiff, in the course of his duty as 15 cars; the train crew consisted of a fireemployé of defendant, was returning from man, engineer, and three brakemen; that just the roundhouse of defendant on the track and before the engine started the plaintiff spoke bridge of defendant, and through the negli- to the fireman and engineer, then got on the gence of defendant was run down and struck footboard with the three brakemen and rode by an engine operated by defendant's em- from the west yard over to the Green Bay ployés. The particular negligence complain- Y, a distance of about one-half mile; one ed of is that the engine bell was not sounded of the brakemen got off shortly before the so as to give plaintiff notice of the approach engine reached the Green Bay Y, another got of the engine; that the engine was moved off at the Y, and the third rode with plainafter it had come to a complete stop without tiff until the engine stopped at or near the any lookout to see whether any person was in trestle; the evidence varies as to the exact a place of danger; that plaintiff was mis- distance from the trestle, some witnesses putinformed as to the movements of the engine ting it at 42 feet west of the beginning of by a member of the switching crew, which the trestle, and others at the beginning of information was relied upon by him. the trestle; the brakeman who remained on the footboard until the engine stopped at the trestle then got off and said to plaintiff, "Mike, we don't go any further, we are going to do some work on the Green Bay Y." The plaintiff testified that he assumed that the switching would take considerable time, an hour or so, and proceeded to walk east over the bridge; after he had walked some distance on the trestle (the evidence varying as to the distance, some witnesses putting it at 42 feet, others at as high as 120 feet) the engine started east and struck plaintiff, causing the injuries complained of. Plaintiff did not hear the engine approaching until it was quite close to him, he says about 18 or 20 feet from him, that it was coming quite fast and he became panic stricken and ran from one side of the track to the other a couple of times until the engine struck him; that he went only about 10 feet after he saw the engine and began to run before he was struck. The questions involved are mainly questions of fact, namely, whether there was sufficient evidence to carry the case to the jury on the defendant's alleged negligence. It is conceded that the case comes under the federal act. The evidence tends to show that the defendant maintains its depot and depot grounds on the east side of the city of Green Bay, Wis., and also a small switching yard there; that on the west side of Green Bay it maintains large shops and extensive switching yards; there is a railroad bridge across the Fox river connecting these two yards; the bridge consists of a trestle at the west side of the river about 290 feet in length; there is no pathway on this trestle, but upon each side about 2 feet below the level of the ties is a stringer upon which a person may stand in safety while a train is passing; the bridge proper is built upon wooden piers, and said piers are so constructed that it is practical for a person crossing the bridge to stand thereon in safety while a train is passing. The main line of the company runs over this bridge, and about 300 feet west of the westerly approach is what is known as the Green Bay and Kewaunee Y, which is a switch connecting the defendant's line with the lines of the Green Bay & Western and Kewaunee, Green Bay & Western Railroad Companies; the duties of the plaintiff were mainly on the east side of the river, but he was frequently required to go across the bridge to the west side on errands of different kinds, such as carrying tools over to the shops on the west side to be sharpened or repaired. There is evidence that it was customary for the "boss" to send plaintiff over sometimes every day and sometimes twice a day, and that plaintiff was accustomed to ride upon the engine going back and forth, with the knowledge of employés operating the engine; that upon the day in question plaintiff was sent to the west side with some tools to be sharpened; that he rode in the caboose, delivered the tools at the It further appears from the evidence that a large number of employés engaged in the shops and in the employ of the defendant were accustomed to cross the bridge in going to and from their work at different hours of the day, and that plaintiff was accustomed to ride back to the east side upon switch engines when returning from the west side while in the discharge of his duties as employé of the defendant; that sometimes plaintiff walked across the bridge in going to and from the shops on the west side. [1] There is no direct evidence that the engineer or fireman knew that plaintiff rode on the footboard or that he got off at the bridge on the day in question, but in view of all the circumstances of the case we think the jury would have been entitled to find that the fireman and engineer knew, or ought to have known, that he was riding on the footboard on his way over the river to his work on the east side. [2] The evidence is conflicting as to whether or not the bell was rung before starting on |