39 N.W. 856 (Wis. 1888), Winstanley v. Chicago, M. & St. P.R. Co.

Citation:39 N.W. 856, 72 Wis. 375
Opinion Judge:ORTON, J.
Party Name:WINSTANLEY, Administrator, etc., Respondent, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
Attorney:For the appellant there was a brief by John T. Fish, attorney, and Burton Hanson, of counsel, and oral argument by Mr. Hanson. For the respondent there was a brief by Weisbrod, Harshaw & Nevitt, attorneys, and Gabe Bouck, of counsel, and oral argument by Gabe Bouck and A. W. Weisbrod.
Judge Panel:HARLOW S. ORTON, J.
Case Date:October 09, 1888
Court:Supreme Court of Wisconsin
 
FREE EXCERPT

Page 856

39 N.W. 856 (Wis. 1888)

72 Wis. 375

WINSTANLEY, Administrator, etc., Respondent,

v.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

Supreme Court of Wisconsin

October 9, 1888

         Argued: September 22, 1888

          APPEAL from the Circuit Court for Winnebago County.

         The action was brought by John Winstanley, as administrator of the estate of Robert Winstanley, deceased, to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant's employees. The plaintiff had a verdict for $ 1,500, and from the judgment thereon the defendant appealed. The facts are stated in the opinion.

          Judgment affirmed.

         For the appellant there was a brief by John T. Fish, attorney, and Burton Hanson, of counsel, and oral argument by Mr. Hanson. They contended, inter alia, that the undisputed evidence showed that the deceased was guilty of negligence. Even if the witness Martin did not warn him as he says he did, that the train was coming near at hand, the deceased was still bound to do what was needful to ascertain whether it was safe for him to cross the track before driving his team dangerously near to it. Seefeld v. C., M. & St. P. R. Co. 70 Wis. 216; Salter v. U. & B. R. R. Co. 75 N.Y. 273; Gorton v. E. R. Co. 45 id. 660; Mantel v. C., M. & St. P. R. Co. 33 Minn. 62; Union P. R. Co. v. Adams, 19 Am. & Eng. R. Cas. 376; Haas v. G. R. & I. R. Co. 47 Mich. 401; Griffin v. C., R. I. & P. R. Co. 68 Iowa, 638.

         For the respondent there was a brief by Weisbrod, Harshaw & Nevitt, attorneys, and Gabe Bouck, of counsel, and oral argument by Gabe Bouck and A. W. Weisbrod. They argued, among other things, that the deceased, being lawfully on the premises, had a right to rely upon the performance by those on the locomotive not only of every act imposed by law upon them when approaching a crossing, but also that they would at least use ordinary care in the management of the train. See cases cited in appellant's brief in Seefeld v. C., M. & St. P. R. Co. 70 Wis. 219; Strong v. Placerville R. Co. 8 Am. & Eng. R. Cas. 273; Ditberner v. C., M. & St. P. R. Co. 47 Wis. 138. It cannot be held, as a matter of law, that it was the duty of the deceased to have gone forward to see if a train was approaching, but this, in connection with the surrounding circumstances, at most, was a question of fact for the jury. Duffy v. C. & N.W. R. Co. 32 Wis. 269; Urbanek v. C., M. & St. P. R. Co. 47 id. 59; Eilert v. G. B. & M. R. Co. 48 id. 606; Dolan v. D. & H. Canal Co. 71 N.Y. 285; Strong v. Placerville R. Co. 8 Am. & Eng. R. Cas. 273; Guggenheim v. L. S. & M. S. R. Co. 57 Mich. 488; Roberts v. C. & N.W. R. Co. 35 Wis. 679; Petty v. H. & St. J. R. Co. 28 Am. & Eng. R. Cas. 618. The fact that a person attempting to cross a railroad does not at the instant of, or immediately before, stepping on the track look or ascertain if a train is coming, is not conclusive evidence of a want of care on his part. His omission to do so should be submitted to the jury. Plummer v. Eastern R. Co. 73 Me. 591, 6 Am. & Eng. R. Cas. 165; Ind. & V. R. Co. v. McLin, 8 Am. & Eng. R. Cas. 237; Chaffee v. B. & L. R. Corp. 104 Mass. 108; Sherry v. N. Y. C. & H. R. R. Co. 104 N.Y. 652; Greany v. L. I. R. Co. 101 id. 419; Nosler v. C., B. & Q. R. Co. 73 Iowa, 268. In the following cases, similar to the one at bar, it was held not to be error to submit the question of contributory negligence to the jury. Pittsburg, C. & St. L. R. Co. v. Martin, 8 Am. & Eng. R. Cas. 253; Hutchinson v. St. P., M. & M. R. Co. 19 id. 280; Klanowski v. G. T. R. Co. 21 id. 648; Loucks v. C., M. & St. P. R. Co. 31 Minn. 526; Tyler v. N. Y. & N. E. R. Co. 137 Mass. 238; Kellogg v. N. Y. C. & H. R. R. Co. 79 N.Y. 72; Petty v. H. & St. J. R. Co. 28 Am. & Eng. R. Cas. 618. See, also, Ferguson v. W. C. R. Co. 63 Wis. 145; Bonnell v. D., L. & W. R. Co. 39 N. J. Law, 189; Sonier v. B. & A. R. Co. 141 Mass. 10. In the absence of evidence to the contrary the presumption is that a person looked and listened. Schum v. Penn. R. Co. 107 Pa. St. 8.

         HARLOW S. ORTON, J.

          OPINION

          [72 Wis. 378] ORTON, J.

          This action is to recover damages which the respondent sustained by the death of his son Robert, which was caused by the negligence of the appellant company, and the plaintiff recovered $ 1,500. The main facts were as follows: The railroad runs nearly north and south through that part of the city of Oshkosh, and there is a side or spur track which runs in the same direction, quite a long distance by, and to accommodate, several mills and manufacturing establishments. On the west side of said track there is a large building used for a glazing-shop, 120 feet long and 50 feet wide, with a platform running along the east side, six feet and four inches wide, and within two

Page 857

feet and eight inches of the west rail of the spur track. [72 Wis. 379] There is also a platform of about the same width along the north end of said glazing-shop, and a door into the shop about the middle of the building, and steps at each end of this platform. Immediately in front of this platform there is, and has been for a long time, a road or private way from a mill some distance west, across the spur track, and on towards High street east, and the crossing is built a little north of the platform and very near the northeast corner of the glazing-shop. The spur track is used for hauling loaded cars south about 7 o'clock in the morning, and running empty cars back over this road crossing about 8 o'clock daily, with no more irregularity than may be caused by a longer time to unload the cars at some times that at others. It was about 8 o'clock when this death occurred, and an engine was pushing several empty box cars on the track towards the north. The deceased, a boy about eighteen years of age, had been working with his father's team for one Martin, hauling loads from said mill west of the crossing, and on this morning, with another workman,...

To continue reading

FREE SIGN UP