14 N.W. 452 (Wis. 1882), Bussian v. Milwaukee, Lake Shore & Western Railway Co.

Citation:14 N.W. 452, 56 Wis. 325
Opinion Judge:TAYLOR, J.
Party Name:BUSSIAN v. THE MILWAUKEE, LAKE SHORE & WESTERN RAILWAY COMPANY
Attorney:Alfred L. Cary, for the appellant. For the respondent the cause was submitted on the brief of Gabe Bouck. To the point that the defendant,
Case Date:December 12, 1882
Court:Supreme Court of Wisconsin

Page 452

14 N.W. 452 (Wis. 1882)

56 Wis. 325

BUSSIAN

v.

THE MILWAUKEE, LAKE SHORE & WESTERN RAILWAY COMPANY

Supreme Court of Wisconsin

December 12, 1882

Argued November 25, 1882.

APPEAL from the Circuit Court for Outagamie County.

Action to recover for personal injuries sustained by reason of the wrongful and negligent acts of the defendant. The facts are stated in the opinion. The plaintiff's attorneys were permitted to testify, upon the trial, against defendant's objection, as to the date at which they were retained in the action and as to the value of their services rendered before the execution by the plaintiff of the release of her claim. The instructions requested by the defendant, referred to in the opinion, were as follows:

"1. If the jury find from the evidence this car could be seen for a distance of thirty or forty rods before the plaintiff and her son approached it, then it was the duty--and the car was standing still upon the track, not in motion--of the plaintiff and her son to have avoided the car, and if they did not do it, it was negligence upon their part and they cannot recover. 2. If the jury find this track was used in common by the Milwaukee, Lake Shore & Western Railway Company and the Green Bay & Minnesota Railroad Company, and the jury find the car was placed where it was by the employees, or under the direction of the employees, of the Green Bay & Minnesota Railroad Company, then that company alone is liable, if anybody is, and the defendant in this case is not liable. . . . 5. If there was any negligence on the part of this plaintiff that contributed to this injury, she cannot recover."

The court refused to give the above instructions. There was a verdict for the plaintiff assessing her damages at $ 700, and from the judgment entered thereon the defendant appealed.

Judgment affirmed.

Alfred L. Cary, for the appellant.

For the respondent the cause was submitted on the brief of Gabe Bouck. To the point that the defendant, being the owner of the switch track, was liable even though the cars thereon belonged to the Green Bay & Minnesota Railroad Company and had been placed there by the direction of the servants of that company, he cited: 1 Redf. on Railways, 602; McElroy v. Nashua & L. R. R. Co., 4 Cush., 400; Langley v. Boston & M. R. R. Co., 10 Gray, 103; Pierce on Railroads, 283; Railroad Co. v. Brown, 17 Wall., 445; O. & M. R. R. Co. v. Dunbar, 20 Ill., 624; Ind., Cin. & L. R. R. Co. v. Warner, 35 Ind., 516; 1 Thomp. on Neg., §§ 8, 12, 345, 509; Harrison v. Collins, 86 Pa. St., 153; 2 Thomp. on Neg., 1088, and cases cited; Lake v. Milliken, 62 Me., 240.

OPINION

Page 453

[56 Wis. 328] TAYLOR, J.

The material facts in the case may be briefly stated as follows: The defendant company, in constructing its railroad through the city of New London, in this state, constructed a switch track, one end of which extended into one of the public streets of said city, nearly to the center of the same and up to the traveled part thereof, but not across it; that some days before the accident happened a number of freight cars, either belonging to the defendant company or to the Green Bay & Minnesota Railroad Company, were placed upon said switch track, and one of the cars at the end of the track extending into the highway was pushed within the limits of the highway and close up to the traveled part thereof, and was left there within the highway for several days, and until the accident happened. The evidence shows that the cars were pushed into the street by an engine of the defendant, operated by its employees, but it also tends to show that the cars placed upon the switch and the one in the highway belonged to the Green Bay & Minnesota Railroad Company, and that they were placed there by the direction of the employees of the last-named company. The evidence also shows that the traveled part of the street, at the place where the switch extended into the street, was upon a grade several feet above the ditches on the side thereof; that on the day the accident happened the plaintiff was riding upon a sleigh on the top of a load of stave bolts, which her son was carrying to market, and when the team [56 Wis. 329] came near the car standing in the street, the horses became suddenly frightened at the sight of the car and sprang to one side, throwing the sleigh with its load off the grade, upsetting the same, and injuring the plaintiff. The evidence also shows that there was room on the traveled part of the road to pass safely if the horses had not been frightened and had not deviated from the track. The car standing in the highway could be seen for a considerable distance by one approaching it along the highway.

The evidence also shows that after the action was commenced the defendant company obtained from the plaintiff a release of all claims for damages...

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