Hoye v. Chi. & N. W. Ry. Co.

• Decision Date: 31 March 1885
• Court: Wisconsin Supreme Court
• Parties: HOYE, AS ADM'R, ETC., v. CHICAGO & N. W. RY. CO.

62 Wis. 666

23 N.W. 14

HOYE, AS ADM'R, ETC.,

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Filed March 31, 1885.

Appeal from county court, Milwaukee county.

In the Third ward of Milwaukee, Buffalo street runs east from Milwaukee river to Lake Michigan. Four side tracks of the defendant run north and south across that street at right angles with it, each terminating at the bumpers 232 feet north of the sidewalk on the north side of that street. These side tracks were numbered consecutively, from the east westward, 8, 9, 10, and 11, respectively, so that the east side track was known as No. 8, and the west side track as No. 11. Immediately east of side track No. 8, and parallel with it, was Van Buren street, about 11 rods west of side track No. 11, and parallel with it was Jackson street. These streets and side tracks were all so located at the time of the injury which caused the death of the intestate. The ends of the side tracks north of Buffalo street were used for storing freight cars, etc. The entire length of these freight cars and coupling, respectively, was about 31 feet.

On the evening of July 16, 1883, there were two freight cars standing on side track No. 10, north of Buffalo street, and up rear, or at the bumpers. About half past 10 o'clock on that evening the defendant's servants backed a freight train, consisting of 10 or 12 freight cars, with an engine at the south end thereof, from the south upon side track No. 10, with the view of leaving the rear four freight cars of the train north of Buffalo street, on the same side track with the other two freight cars then standing thereon. The evidence tends to show that when the train had backed so far north that the rear five cars of the train had passed north of Buffalo street, the rear four of the cars became uncoupled, and the balance of the train started south; that the deceased was killed at or near where the sidewalk on the north side of Buffalo street crossed side track No. 10, by the movement of the train; that about the time named, the deceased started from her sister's, two and one-half blocks north-east of the place of the accident, for her home on Jackson street, south-east of the place of the accident; that there was a good deal of travel on Buffalo street; that no bell was rung, no light or other signal on the rear end of the train, and no guard at the crossing at the time the train backed over the street; that there was at the time no street light in the vicinity except a gas-lamp at the north-west corner of Buffalo and Jackson streets, 243 feet distant from the place of the accident; that the side track No. 10 descended from said sidewalk north to the bumpers; that at the time of the accident there was water over the ties immediately north of that sidewalk; that there was no water on the pavement of the street or sidewalk where the accident occurred; that the deceased was found with her head between the two west wheels of the forward truck of the hind car, as it started south, nearly severed from the body, which was south-east of the head; that the clothing on her right side, though dry when she started home just before, was saturated with water; that the body had been dragged along the track to the place where it was found, from a point about two and a half feet south of the north line of the sidewalk, a distance of about 20 feet; that the brake-rod or brake-beam, under the car that did the killing, was elevated 11 inches above the top of the rails, and 15 inches above the ties north of that sidewalk; that where that sidewalk crossed track No. 10, it was planked up nearly or quite level with the top of the rails, so that the brake-rod at that point was only 11 or 12 inches above the plank.

This action is brought under the statute to recover damages for her death. On the trial the plaintiff was nonsuited on his own showing, and from the judgment entered thereon he brings this appeal.

N. S. Murphy, for appellant.

Jenkins, Winkler & Smith, for respondent.

CASSODAY, J.

If the deceased came to her death through the neglect of the defendant to ring the bell, or give other requisite signal, before and while the train was crossing the street, without any contributory negligence on her part, then the defendant would be liable. Section 1809, Rev. St; Bohan v. Railway Co. 58 Wis. 30;S. C. 15 N. W. REP. 801;Eilert v. Railway Co. 48 Wis. 606;S. C. 4 N. W. REP. 769;Haas v. Railway Co. 41 Wis. 44;Ransom v. Railway Co. 22 N. W. REP. 147;Bower v. Railway Co. 21 N. W. REP. 536. The theory of the defense is that the train backed up until the front end of the fifth car from the rear was at or near the north line of the sidewalk in question, when it stopped to uncouple the rear four cars, and that while standing in that position the deceased came along on the sidewalk from Van Buren street to the place where the train was so standing, and then undertook to pass through under the draw-bar between the front end of the fifth car and the one ahead of it, and while in the act of so doing the train started south, and she was caught under the fifth car and killed as stated.

The evidence tends to show that the draw-bar was about 31 inches above the rails. If this theory is conclusively established by the evidence, then there can be no question but what the deceased was guilty of contributory negligence, and hence that the nonsuit was properly granted. The difficulty in sustaining this theory is the absence of any direct evidence as to the precise...