Hoppe v. Chi., M. & St. P. Ry. Co.

Citation21 N.W. 227,61 Wis. 357
CourtUnited States State Supreme Court of Wisconsin
Decision Date06 November 1884
PartiesHOPPE, ADM'R, ETC., v. CHICAGO, M. & ST. P. RY. CO.
OPINION TEXT STARTS HERE

Appeal from circuit court, Dodge county.

On August 15, 1881, the plaintiff's intestate was run over and killed by a train of cars running on the railway of the defendant company, in the city of Watertown. The plaintiff has been duly appointed administrator of the estate of the deceased, and brings this action under the statute to recover damages for such killing, alleging that the same was caused by the negligence of the defendant's employes in charge of such train. The deceased was an infant, not quite 16 months old, and the son of the plaintiff. At the time of the death of his son the plaintiff resided in the Fifth ward of the city of Watertown, and occupied a piece of land containing about three acres. The defendant's railway, leading from Watertown to Portage City and La Crosse, passed in a north-west direction through such parcel of land, leaving about two acres thereof south-west of the railway and one acre north-east thereof. The plaintiff's residence was on the two-acre parcel, and the one acre was used by him as a pasture for his cow. The plaintiff is a laboring man and is poor. He was then in the employ of the railroad company. His family consisted of himself, his wife, and four children,--Gustave, Otto, Jules, and Emil, the deceased. He was about 38 years of age; his wife was 42; and the children were aged, respectively, about 12, 8, and 6 years, and 16 months. Fences had been theretofore erected and maintained by the defendant through the tract of land so occupied by the plaintiff. There was a hole in the fence on the south-west side of the track, caused by the absence of the two middle boards between two posts. It is about 20 rods from the plaintiff's house to this hole, and there was a well-beaten track between them. The plaintiff's wife was accustomed to use this path when she went to milk her cow, except in wet weather.

After the plaintiff and his family had eaten their supper on the evening of August 15, 1881, but while it was still full daylight, Mrs. Hoppe went across the railroad track to milk her cow, and the plaintiff went to the west side of his house and commenced sawing wood. Before Mrs. Hoppe left the house she directed Gustave, the eldest child, to wash the supper dishes, and told Otto, the next eldest, to watch the baby, meaning the deceased. A very few minutes thereafter Emil was run over, immediately opposite the hole in the fence, and killed by a passing freight train running from Watertown to Portage City. The engineer of such train saw something on the track at the point where Emil was killed, when he was probably 80 to 100 rods distant therefrom, but supposed it to be a dog or some other animal. When he was within 12 or 15 car-lengths of the object--about 25 or 30 rods--he discovered it was a child. He promptly whistled for brakes, reversed his engine, sanded the track, and used every available means to stop the train. The train hands were at their proper posts and promptly applied the brakes. But the momentum of the train was such that although running up a grade, which the testimony tends to show was 46 feet to the mile, they did not succeed in stopping it until the locomotive and four or five cars had passed the point where Emil was struck. Twenty-six rods south-east of that point the railroad crosses a plank-road which the evidence shows was much traveled. There were other traveled streets or roads within the city limits north of the plank-road in the vicinity of and beyond the plaintiff's residence. The railroad track through plaintiff's premises and down to the plank-road was much used as a foot-way by persons residing in that vicinity.

It is in evidence that a few weeks before Emil was killed he went on the track at the same point, having followed his mother, who had gone to milk her cow. This fact was known to Mrs. Hoppe. The plaintiff had resided in the same place since the preceding April, and the train in question was a regular freight train, which passed the plaintiff's residence daily at nearly the same hour. The speed of the train which ran over Emil when it crossed the plank-road is variously estimated by the witnesses at from six to fifteen miles per hour.

The court overruled a motion for a nonsuit, and, on the demand of the defendant for a special verdict, submitted certain questions of fact to the jury, which, with the answers of the jury thereto, are as follows: (1) Was the death of Emil Hoppe caused by the train of defendant on the fifteenth day of August, 1881? Answer. Yes. (2) At what rate of speed was the train running when it passed the whistling-post south-east of the Portland plank-road? A. At twelve miles per hour. (3) What was the average rate of speed of the train between the junction and the point where the engineer discovered that a child was on the track? A. Nine miles per hour. (4) Did the engineer and train-men do all that could have been done to stop the train and avoid the accident? A. No. (5) Prior to the accident were persons in the habit of traveling or passing along defendant's track between the junction and Bonner street? A. Yes. (6) On the fifteenth day of August, 1881, was there an opening in the fence at the point where the path leading from plaintiff's house crosses the fence? A. Yes. (7) If you answer that there was an opening, what kind of an opening was it, and how long had it existed? A. An opening from one post to another, with the exception of the top and bottom boards, which opening existed from November, 1880, and until after the accident. (8) Did the parents of the child know of or use said opening before August 15, 1881. A. Yes. (9) Was the death of Emil Hoppe occasioned by the negligence of the employes or servants of the defendant? A. Yes. (10) If you answer yes to the last question, of what negligence was defendant guilty? A. Of not fixing the fence at said opening, and also of not running the train slow enough within the limits of the city. (11) Was the death of Emil Hoppe occasioned in part by contributory negligence of his parents, or either of them? A. No. (12) Do you find for plaintiff or for the defendant? A. For the plaintiff. (13) If for the plaintiff, at what sum do you assess the damages? A. At one thousand dollars.” The jury also found a general verdict for the plaintiff, assessing his damages at $1,000.

A motion was made for a new trial upon the alleged ground, inter alia, that counsel for the plaintiff had indulged in improper remarks in his closing address to the jury. The court denied this motion, and judgment was entered pursuant to the verdict. Counsel for the defendant afterwards moved the court upon affidivits to set aside the judgment and grant a new trial. This was denied. Such affidavits are returned with the record. They relate to the alleged improper remarks of counsel. This appeal is by the defendant from the judgment, and from the order denying the motion to set the same aside.

Harlow Pease, for respondent.

John W. Cary and D. S. Wegg, for appellant.

LYON, J.

The questions, whether the death of the plaintiff's intestate was caused by the negligence of the employes of the defendant company operating the train, and, if so, whether the parents of the deceased were guilty of negligence which contributed to his death, were submitted to the jury for their determination. The first question was answered by the jury in the affirmative, and the second in the negative. If they were properly thus submitted, the verdict supports the judgment for the plaintiff, and the judgment cannot be disturbed unless error in some other respect has intervened. The important, if not the controlling, questions to be now determined are, therefore: Does the evidence prove conclusively that the defendant was free from negligence? and, if not, does it prove conclusively that the plaintiff and his wife were guilty of any negligence contributing to the death of their child? The jury found the defendant guilty of negligence in not repairing the opening in the fence on plaintiff's premises through which the child went on the railroad track, and because the train was running at too high a rate of speed. They also found that the train was running at the rate of twelve miles per hour when it passed the whistling-post before it reached the plank-road crossing, and that its average rate of speed between the junction and the point where the engineer discovered that a child was on the track was nine miles per hour.

1. The testimony bearing upon the rate of speed of the train will first be considered. The junction mentioned in the findings is understood to be something over 200 rods south-east of the plank-road. The distance of the whistling-post from the plank-road crossing is understood to about 40 rods. The grade of the road, from the junction to the place of accident, is unequal. The testimony tends to show that it varies from 5 1/2 feet to 46 feet per mile. Only two witnesses estimated in miles the speed of the train. One Lounsbury, a witness for the plaintiff, who saw the train just as the signal for brakes was sounded, probably near the plank-road crossing, estimated its speed at that point at 15 miles per hour. The engineer of the train, a witness for the...

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