35 N.W. 278 (Wis. 1887), Seefeld v. Chicago, Milwaukee & St. Paul Paul Co.

Citation:35 N.W. 278, 70 Wis. 216
Opinion Judge:LYON, J.
Party Name:SEEFELD, Appellant, v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Respondent
Attorney:For the appellant there was a brief by Bardeen, Mylrea & Marchetti, attorneys, and G. W. Cate, of counsel, and oral argument by Mr. Bardeen. For the respondent there was a brief by John W. Cary, attorney, and Burton Hanson, of counsel, and oral argument by Mr. J. T. Fish and Mr. Hanson.
Judge Panel:WILLIAM P. LYON, J. DAVID TAYLOR, J., dissented. TAYLOR, J., dissents.
Case Date:November 22, 1887
Court:Supreme Court of Wisconsin
 
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Page 278

35 N.W. 278 (Wis. 1887)

70 Wis. 216

SEEFELD, Appellant,

v.

THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Respondent

Supreme Court of Wisconsin

November 22, 1887

Argued November 7, 1887.

APPEAL from the Circuit Court for Marathon County.

This is an action to recover damages for injuries to the person and property of the plaintiff, alleged to have been caused by the negligence of the employees of the defendant company in operating one of its trains on the Wisconsin Valley division of the company in the city of Wausau.

The railroad of the defendant company passes through that city from north to south on the east side of and near the Wisconsin river. Bridge street in said city runs east and west, crossing the railroad. A spur track, commencing south of such crossing, extends north, also crossing Bridge street about thirty-two feet east of the main track. At such crossing the spur track is between three and four feet higher than the main track. At a point almost 227 feet east of the crossing of the main line, Bridge street crosses First street. From a point west of the crossing of the main line, Bridge street is planked sixteen or eighteen feet in width, east, to a point within about forty-five feet of First street. In the northeast angle of Bridge street and the spur track there is a planing mill, with a platform in front and to the west of it extending to the spur track. At the time of the accident there were piles of lumber upon such platform, and box cars standing upon the spur track, extending in front of the platform south to, and probably upon, Bridge street. There was also a car on that track, south of the others and partly in the street, with an opening between it and the other cars for the passage of teams on the plank way.

During the afternoon of July 27, 1885, the plaintiff, who resided west of Wausau and had come into the city that morning over such crossing, started for his home, and drove his team of horses, hitched to a common lumber wagon, north on First street to Bridge street. He then turned west on the latter street. He had in his wagon eight barrels of lime, a keg of nails, and other articles of merchandise. His daughter was with him. Immediately preceding him, going in the same direction, was a team and wagon driven by one Gerst. This wagon was loaded with large wooden frames about twelve feet in length, laid across the top of the wagon box and piled as high as an ordinary load of hay. Gerst was riding on the top of the load. Immediately behind the plaintiff was another team which was being driven in the same direction.

Bridge street descended very gradually from First street to the spur track, and from thence there was a sharp descent to and beyond the main track. A team with a loaded wagon being driven on that street can easily be stopped at any time before the wagon gets across the spur track, but it is difficult to stop after that until the main track is crossed. From a point on Bridge street a few feet west of the corner of First street, to the spur track, a train on the main line could not be seen by the plaintiff when he was passing there, the view being obscured by the planing mill, the lumber piles on the platform, and the cars standing upon the spur track. The plaintiff drove his team on a walk, and looked and listened for passing trains, but did not stop his team. Gerst drove his team across the main track in safety. He saw a train approaching the crossing from the north when he was between the two tracks, and hastened the speed of his team. When the plaintiff had crossed the spur track he saw the same train, then in the immediate vicinity of the crossing. It was too late to stop his team. He reined them to the south, but not in time to clear the train...

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