50 N.W. 404 (Wis. 1891), Stackman v. The Chicago & Northwestern Ry. Company

Citation:50 N.W. 404, 80 Wis. 428
Opinion Judge:HARLOW S. ORTON, J.
Party Name:STACKMAN, Respondent, v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant
Attorney:For the appellant there was a brief by Winkler, Flanders, Smith, Bottum & Vilas, and oral argument by F. C. Winkler. G. Stevens, for the respondent,
Case Date:November 17, 1891
Court:Supreme Court of Wisconsin
 
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Page 404

50 N.W. 404 (Wis. 1891)

80 Wis. 428

STACKMAN, Respondent,

v.

THE CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant

Supreme Court of Wisconsin

November 17, 1891

Argued October 20, 1891.

APPEAL from the Circuit Court for Sauk County.

Action to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the defendant's negligence. The facts are stated in the opinion. The defendant appeals from a judgment in favor of the plaintiff.

Judgment affirmed.

For the appellant there was a brief by Winkler, Flanders, Smith, Bottum & Vilas, and oral argument by F. C. Winkler. They contended that there was no actionable negligence on the part of the defendant. Brick v. R., N. Y. & P. R. Co. 98 N.Y. 211; Couch v. C., C. & A. R. Co. 22 S.C. 557; Batterson v. C. & G. T. R. Co. 53 Mich. 125; Michigan Cent. R. Co. v. Austin, 40 id. 247; Piquegno v. C. & G. T. R. Co. 52 id. 40. The plaintiff was guilty of contributory negligence. The danger was patent, and the plaintiff had equal and ample means of knowing it. Ballou v. C. & N.W. R. Co. 54 Wis. 257; Goltz v. M., L. S. & W. R. Co. 76 id. 136; Johnson v. Ashland Water Co. 77 id. 54.

G. Stevens, for the respondent, cited Dorsey v. Phillips & C. Const. Co. 42 Wis. 583.

OPINION

Page 405

[80 Wis. 429] HARLOW S. ORTON, J.

The material facts are these: The company had been constructing a "wye" leaving a main side track of its road, curving around to the east up into a ravine where the stone is to be quarried for carriage on the road, and from that point returning towards the west to the road. The stone to be quarried was situated north of and near the disconnected end of the north branch or arm of the "wye." The north branch of the "wye" was built close to higher ground, so that when the bed for the track was excavated and prepared for the iron there was a bank from twelve to eighteen feet high along and very near the north side of the track. The work was not entirely finished, but sufficiently to be used for such purpose. This branch was in some places several feet away from the embankment, but at the place where the accident happened the track was so close to the bank that a car standing upon it would come so near to the bank as not to permit a person to pass through the space between the car and the bank intact. Three cars, loaded with stone, were...

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