Bussian v. Milwaukee, L. S. & W. Ry. Co.

• Decision Date: 12 December 1882
• Citation: 14 N.W. 452,56 Wis. 325
• Court: Wisconsin Supreme Court
• Parties: BUSSIAN v. MILWAUKEE, L. S. & W. RY. CO.

56 Wis. 325

14 N.W. 452

BUSSIAN

v.MILWAUKEE, L. S. & W. RY. CO.

Supreme Court of Wisconsin.

Filed December 12, 1882.

Appeal from circuit court, Outagamie county.Gabe Bouck and S. S. Hamilton, for respondent, Amelia C. Bussian.

A. L. Cary, for appellant, Milwaukee, Lake Shore & Western Railway Company.

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 employes, 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 employes 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 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 in the action, and an agreement to discontinue the same. This release was set up by way of supplemental answer. The plaintiff, on the trial, claimed that the release was obtained by fraud, misrepresentation, and undue influence. The plaintiff had a verdict upon the trial at the circuit court, and from the judgment entered thereon the defendant appealed to this court.

The learned counsel for the appellant insist (1) that the evidence shows that the company lawfully extended their switch track into the highway at the place where the accident happened, and that they had the lawful right to place their cars upon such track within the highway and keep them there, and consequently the company was guilty of no negligence in so doing, and the court should either have granted a nonsuit or directed a verdict for the defendant; (2) that the undisputed evidence shows that the car which stood in the highway did not belong to the defendant, but to the Green Bay & Minnesota Company, and that it was placed there by the employes of said company, and not by the defendant; (3) that the plaintiff was guilty of contributory negligence in riding upon the top of a load of stave bolts along the street, and in attempting to pass along the street by said car in that situation on the load; (4) that incompetent evidence was admitted for the purpose of avoiding the release given by the plaintiff; (5) that there was no evidence of fraud, misrepresentation, or undue influence, sufficient to justify a verdict avoiding such release.

It is claimed that by virtue of sub. 5, § 1827, and section 1836, Rev. St. 1878, the defendant company was authorized to extend its switch track into the highway, and to use the same with its cars and engines. It may be admitted for the purposes of this case that the switch track was lawfully constructed and maintained in said highway, and that the company was authorized to use such track for the purpose of switching its cars; still, we are of opinion that the sections of the statute referred to do not authorize the company to use the track within the highway for the purpose of storing its cars. We think the provisions of the statute were intended to give the railroad companies the right to use the highways for passage over the same with their cars and engines, but that it was not intended to confer on such companies the right to use such highways for depot purposes of any kind. Such use would be inconsistent with the rights of the public to their use as highways, and, in the absence of any express provision of law conferring that right, no presumption ought to be indulged in which would justify such use. Lackland v. Railroad Co. 31 Mo. 180-185;State v. Railroad, 25 N. J. Law, 437.

In the last case the court approved the following charge of the trial judge: “The whole community are interested in the highway; every citizen and every traveler has a right to a free passage over it, and their rights, so far as is necessary for the settlement of this case, are paramount to the right and convenience of the company.” And the court further say: “The right of the company, under their charter, to use the public highway for mere purposes of transit, was not the matter in question. That was not necessary to the settlement of the case. * * * It had previously been stated by the judge in his charge that the company had a right to construct a depot, * * * but that the company were bound to so locate the depot that they could receive and discharge freight and passengers without injuriously interfering with the use of the highway by the public.”

In the case at bar, if the company had the right to extend their switch track into the highway, they were bound to use such track in such manner as not to unnecessarily interfere with the public travel over the same. If they might use it temporarily, by backing the cars within its limits for the purpose of changing the position of their trains or cars upon the tracks of the company, or for the purpose of unloading one or more cars at the elevator, this would not justify the company in leaving such car or cars within the highway for an indefinite period, and thereby unnecessarily endanger the public travel over the same. The evidence shows that the track extending into the highway was considered a dangerous thing, so much so that the city authorities at one time removed one of the rails in order to prevent the cars from being pushed into the street, and that it was afterwards replaced by the company. If the leaving of the car in the street for several days, near the traveled track, was not negligence in law, it was certainly evidence tending to prove negligence on the part of the company, and it was proper to submit the question to the jury. We think there can be little doubt that a railroad car placed near the traveled track of a highway endangers the travel along the same. It is an object which is apt to frighten horses traveling along the road, and if placed at a point in the highway where a slight deviation from the traveled track would endanger the safe passage of the carriage or wagon, a jury would be justified in attributing negligence to the party who placed it there. Foshay v. Glen Haven, 25 Wis. 288.

If it had been conclusively proved that the car on the street was the car of the Green Bay & Minnesota Company, and that it was placed there by the directions of the employes of that company, by those using the engines of the defendant, it would make no difference as to the liability of the defendant. It is admitted that the switch track was constructed and owned by the defendant company, and if it knowingly suffered another company to use it in an unauthorized way, it must answer for the...