Morey v. Lake Superior Terminal & Transfer Ry. Co.

• Decision Date: 02 May 1905
• Citation: 103 N.W. 271,125 Wis. 148
• Court: Wisconsin Supreme Court
• Parties: MOREY v. LAKE SUPERIOR TERMINAL & TRANSFER RY. CO.

125 Wis. 148

103 N.W. 271

MOREY

v.LAKE SUPERIOR TERMINAL & TRANSFER RY. CO.

Supreme Court of Wisconsin.

May 2, 1905.

Appeal from Superior Court, Douglas County; C. Smith, Judge.

Action by Ray Rockwell Morey, a minor, by Willis C. Morey, his guardian ad litem, against the Lake Superior Terminal & Transfer Railway Company. Judgment for defendant, and plaintiff appeals. Reversed.

This is an action to recover damages for personal injuries. The defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. It is alleged that the defendant is a corporation organized under the laws of this state, and operating a railroad in the city of Superior; that plaintiff, a boy of the age of 12 years at the time of the accident, did then reside and now resides in the city of Superior; that defendant's railroad tracks run east and west within the city, between Eighth and Ninth streets, and across Cummings, Baxter, and Lamborn avenues, near to and directly south of the Chicago, St. Paul, Minneapolis & Omaha Railway Company's tracks. The complaint, in describing the tracks across the avenues in question, states that the most northerly track runs parallel to and near Eighth street, designated as Omaha track No. 1; about 20 feet south of and parallel to this track is Omaha track No. 2; about 7 feet south of this track is Omaha track No. 3; about 7 feet south of this track lies defendant's track, designated as Terminal track No. 1; and about 7 feet south of this is defendant's Terminal track No. 2. The avenues are alleged to be about 300 feet apart. Baxter avenue lies midway between Cummings avenue, on the west, and Lamborn avenue, on the east. The complaint states that a coal shed extending from Baxter to Lamborn avenue is located north of Omaha track No. 1; that between Omaha track No. 1 and Omaha track No. 2, and west of and abutting on Baxter avenue, there is a dwelling house; that between Omaha track No. 2 and Omaha track No. 3, between Baxter and Lamborn avenues, there is a lumber yard, with sheds; and that Omaha track No. 2 had freight or box cars upon it at the time of the accident, covering the whole track from Cummings avenue to Lamborn avenue, with an opening for the crossing on Baxter avenue. It is averred that as plaintiff, going toward the south to his home at the time in question, approached the crossing on Baxter avenue, the coal shed, dwelling house, lumber and sheds, and the box cars on Omaha track No. 2 completely shut off and obstructed his view of defendant's Terminal track No. 1 until he had passed the box cars on Omaha track No. 2. The complaint further states that at about the hour of 11 o'clock in the forenoon of September 14, 1901, plaintiff walked along Baxter avenue, reached this crossing from the north, and attempted to cross over the tracks; that when he approached the crossing he was unable to look east or west over defendant's Terminal track No. 1 on account of these obstructions, but that he listened for signals by whistle or ringing of bells, and for train noises, which he alleges could have been heard, if given or made; that he heard no noise or signals, and then proceeded south on the avenue to cross the tracks; that, when he emerged from between the box cars on Omaha track No. 2, he looked to the west along Omaha track No. 3 and defendant's Terminal track No. 1, and had a clear view of from one-half of a block to a block, and he saw no train or engine within this distance approaching over either track, and that he listened, and heard no train or bells or whistle; that he then turned to the east to look for approaching trains or engines in that direction, and proceeded on his walk southward until he reached a point about midway between Omaha track No. 3 and defendant's Terminal track No. 1, this occupying only a few seconds in time; that he heard no noise or signal of an approaching train from either direction; that he then and there stopped, and again turned to look to the west, when about 125 feet west he suddenly saw a train coming toward him on defendant's Terminal track No. 1 at the high and unlawful speed of about 20 miles per hour, without having given any signal by ringing the bell or blowing the whistle; that, on account of not having been warned of its sudden approach at such a frightful and dangerous rate of speed, he became shocked with fear, producing unconsciousness and loss of control over his actions, which caused him to fall to the ground toward the track; and that as he fell his left leg and foot were placed across the north rail of defendant's track, were struck by the train, and so injured as to necessitate an amputation. The court sustained the demurrer to the complaint. This is an appeal from the order.Samuel A. Anderson and Crownhart & Foley, for appellant.

J. A. Murphy and Heber McHugh, for respondent.

SIEBECKER, J. (after stating the facts).

It is strenuously urged by defendant that this action cannot be maintained because the cause of action pleaded is covered and concluded by a judgment of this court on an appeal in a former action, and that therefore the rule of res adjudicata applies to all questions involved in this case. This action is wholly independent of, and in no way connected with, the other and former action referred to. Nothing in the case shows that it is the same cause of action as is embraced in the judgment so relied on. It appears that this is an original action, which has not been before this court, and that it has never been prosecuted to judgment in the trial court or in this court. On this appeal we are confined to the record and proceedings in this case, and therefore no question of res adjudicata is involved.

In stating the facts the pleader employed language which somewhat confuses the purpose of the complaint. The terms employed charge the defendant with ordinary negligence in the management and conduct of its business in running the train in question, and then characterizes the conduct of the persons in charge of the engine as “reckless, wanton, and unlawful,” without clearly indicating whether or not it is intended to charge an intentional wrong. This form of pleading has been the subject of discussion in the recent cases of Wilson v. Chippewa Valley Electric Ry. Co. (Wis.) 98 N. W. 536, 66 L. R. A. 912,Turtenwald v. Wisconsin Lakes Ice & Cartage Co., 121 Wis. 65, 98 N. W. 948, and Rideout v. Winnebago Traction Co. (Wis.) 101 N. W. 672, and been held to be improper and open to a motion for indefiniteness. It seems that it was intended to state but one cause of action, and, in determining the question raised by the demurrer, it is therefore necessary to declare what cause of action is pleaded. Counsel for both parties have assumed that the complaint charges a cause of action for ordinary negligence. This construction, under the above cases, precludes all claim that it states a cause of action for a willful injury, and we shall so treat it.

It is contended that, under the facts stated in the complaint, it appears, as a matter of law, that the negligence charged was not the proximate cause of the injury. The specific grounds of negligence charged are that defendant negligently ran its train over the crossing at an illegal rate of speed, that it negligently omitted to give the required signals by ringing the bell or blowing...