Ferguson v. Wis. Cent. R. Co.

Citation23 N.W. 123,63 Wis. 145
PartiesFERGUSON v. WISCONSIN CENT. R. CO. AND ANOTHER, IMPLEADED, ETC.
Decision Date28 April 1885
CourtUnited States State Supreme Court of Wisconsin
OPINION TEXT STARTS HERE

Appeal from circuit court, Waupaca county.

This action was brought to recover damages for personal injuries sustained by the plaintiff, who was struck by a moving car on the Wisconsin Central Railroad, at the village of Spencer, on September 26, 1881. The defendant Stewart was not served with process, and made no appearance to the action. The complaint alleges that at the time the plaintiff was injured the railroad was being operated by the defendant company, and by the defendants Abbott and Stewart, as trustees thereof, and that the injury was caused by the negligence of the defendants' employes operating the car and railroad at that point. It also alleges that the plaintiff was injured without fault or negligence on his part, and states the circumstances under which the injury occurred. The defendant Abbott answered separately, alleging that he and his co-trustee (Stewart) had, at the time the plaintiff was injured, the sole and exclusive possession and control of such railroad, and denying that the defendant company was concerned in the operation thereof. The defendant company also answered, denying that it had any control over or any connection with the operation or management of such railroad when the plaintiff was injured.

The testimony introduced on the trial tends to show the following state of facts: The village of Spencer contains about 800 inhabitants, and the railroad passes through it in a northerly and southerly direction, crossing Clark street, which is the principal business street of the village. The depot is located about 40 rods south of Clark street. At the depot there is a side track near the main track, and connecting with it at the south end by a switch located 18 1/2 feet south of the south side of Clark street. About 300 yards north of this switch there is a spur track, known as “Lamb's side track,” connecting with the main track. On the day the plaintiff was injured, a train of freight cars arrived from the south and stopped in the vicinity of the depot. A car was standing upon Lamb's side track, which it was desired to place in the train, and so the engine was detached from the train and moved up the track and was attached to such car. The engine was then backed south, down the track, with the car in its rear attached to the pilot. When they reached a point 8 or 10 rods north of Clark street, and while still in motion, this car was detached from the engine, which ran upon the side track, leaving the car to run down the main track to the train. When this process was going on, the plaintiff came out of a store a few rods west of the track, and walked east on Clark street towards the track. He approached the track just as the engine was passing, and after it had passed he attempted to cross the track and was struck by the car, receiving the injuries complained of. When he stepped upon the track he was enveloped with smoke and steam from the engine, which obscured his vision. He did not look north on the track until it was too late to avoid the injury. The railroad at this point descends somewhat to the south, and the car was running with considerable velocity. The point of the injury was about 50 feet north of the switch connecting the side track first above mentioned with the main track. After pulling the pin which detached the car from the engine, the brakeman went to the top of the car and partly set the brake for the purpose of checking its motion, in order that the switch might be adjusted before the car reached it. He then saw the plaintiff and called to him, but too late to avoid the accident. It does not appear that any other precautions were used to avoid injury to persons passing along the street while the switching was being done. By reason of his injuries one-half of one of plaintiff's feet was necessarily amputated, he was disabled from attending to his business for over 13 months, and was subjected to an expenditure of considerably over $1,000 for surgical and other attendance, and for medicine.

The following special verdict was returned by the jury: (1) Were the defendants, in doing this switching, guilty of any want of ordinary care and diligence, and was such want of ordinary care and diligence the cause of the injury? Answer. Yes. (2) Were the defendants guilty of want of ordinary care and diligence in making a flying or running switch across the public street at the place where this flying or running switch was made? A. Yes. (3) Were the defendants guilty of any want of ordinary care and diligence in making this flying or running switch, and did such want of ordinary care and diligence cause the injury? A. Yes. (4) Had the plaintiff waited until the smoke and steam made by the passing engine cleared away, before stepping on the track, or attempting to go on the track, could he have seen the car which followed the locomotive, had he looked? A. Yes. (5) Was the plaintiff struck by the car within the limits of Clark street, or south of Clark street? A. Within the limits of Clark street. (6) When the plaintiff was struck by the car, was he walking south on the railroad, or was he attempting to cross the track? A. The plaintiff was attempting to cross the track at the usual crossing on Clark street. (7) Was the plaintiff guilty of any want of ordinary care in stepping on the track, or attempting to go on the track, at the time he did, as testified by him, that contributed to the injury? A. He was not. (8) What are the damages the plaintiff sustained by reason of such injury? A. $8,000.”

The rulings of the court on the trial, upon which errors are assigned, are stated in the opinion. Separate motions for judgment on the special verdict, and for a new trial, were made by the defendants, Abbott and the railroad company, both of which were denied, and judgment for the plaintiff was rendered for the damages assessed by the jury. The defendants, the railroad company and Abbott, appeal jointly from the judgment.Gabe Bouck, for respondent.

Howard Morris and C. W. Felker, for appellants.

LYON, J.

1. The question of the alleged contributory negligence of the plaintiff will first be considered. The jury found, in answer to the fourth question submitted to them, that, had the plaintiff waited until the smoke and steam made by the passing engine cleared away before stepping on the track, he could have seen the car which followed the engine, had he looked. This finding is abundantly supported by the evidence. Counsel for the defendants, in his argument, maintained with great earnestness that this finding establishes the contributory negligence of the plaintiff, under the well-established rule that it is the duty of a person about to cross a railroad track before doing so to look and listen for approaching trains. The motion of the defendants for judgment was based upon this finding.

No court has applied and enforced the above rule more uniformly and consistently than has this court in numerous cases adjudicated by it. Had the plaintiff gone upon the track in front of the engine and been injured, it would probably have been a case for the application of the rule; but no such...

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