Olson v. Chi., M. & St. P. Ry. Co.

• Decision Date: 17 November 1891
• Citation: 81 Wis. 41,50 N.W. 412
• Parties: OLSON v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

81 Wis. 41

50 N.W. 412

OLSON

v.CHICAGO, M. & ST. P. RY. CO.¹

Supreme Court of Wisconsin.

Nov. 17, 1891.

Appeal from circuit court Waukesha county; A. SCOTT SLOAN, Judge. Reversed.

Action by Peter W. Olson against the Chicago, Milwaukee & St. Paul Railway Company to recover damages for personal injuries. Verdict and judgment for plaintiff. Defendant appeals.John T. Fish and Jackson & Jackson, for appellant.

Winans & Hyzer, for respondent.

WINSLOW, J.

This is an action to recover for personal injuries sustained by plaintiff by being struck by one of defendant's locomotives on th 15th day of March, 1890, at the depot in the village of Oxford, Rock county. On that day a tobacco buyer was buying and receiving tobacco at defendant's depot, and a large number of farmers, with teams and wagons loaded with tobacco, were in the village, delivering tobacco at the depot. Among these was respondent, with a young team. There was a large open space or square in the village north of the depot, and separated from the depot by the railway track, and in this space were most of the teams, some hitched, and others unhitched, while awaiting their turn to unload. When a man's turn came, his team was driven across the track at the west end of the depot, and the tobacco was received upon a high platform. Just before the accident the respondent drove his team up to within 12 or 18 feet of the railway track in this open space, it being his turn next to unload. Leaving his team unhitched and unattended, he went across the track onto the depot platform at the west end of the depot, and began to help unload the wagon which was ahead of him. While here the depot obsructed his view eastward on the railway track, but he could see westward on the track for a considerable distance. No regular train was due at the time, but the respondent heard some one on the platform say, “A train is coming!” and he immediately jumped to the northward to reach his team. An engine was passing through the village from the east without stopping at the depot, and, as respondent jumped from the platform, he landed on the forward part of the engine and was thrown some distance, sustaining severe injuries. Respondent knew there was no train coming from the west, and he started for his horses because he supposed a train was coming from the east. It appears from testimony of trainmen that he made two jumps,--one from the high platform to the lower passenger platform, adjoining the track, and another from this platform onto the engine. Respondent himself testified that after the first jump from the high platform he knew nothing, except that he got struck; that he neither saw nor heard anything. In answer to appropriate questions, the jury found that no whistle was blown for the crossings near the depot, nor for the station itself, and that the engine was running at the rate of 30 miles an house. They also found a general verdict in favor of respondent. From a judgment rendered upon this verdict, the railroad company appeals.

The first contention made by the appellant is that the evidence does not justify the findings of the jury of negligence in the running of the engine. In the view which we take of the case, we shall assume that these findings are supported by the evidence, and are facts in the case. The situation then is that the servants of the railroad company negligently drove this wild engine, without warning, at the rate of 30 miles an hour, through the village and depot grounds, and in so doing struck and injured ...