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

• Decision Date: 03 May 1892
• Citation: 52 N.W. 91,82 Wis. 286
• Parties: LIERMAN v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

82 Wis. 286

52 N.W. 91

LIERMAN

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

May 3, 1892.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

Action by Wilhelmina Lierman, as administratrix of Herman Lierman, deceased, against the Chicago, Milwaukee & St. Paul Rail way Company, for damages for negligently causing the death of plaintiff's intestate. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

Plaintiff's intestate was killed by being struck by a locomotive drawing a passenger train at or near the crossing of Muskego avenue, over defendant's tracks, in the city of Milwaukee, at about 8 o'clock P. M., November 7, 1888. There were several parallel tracks at the place of the accident. The complaint charges the company with negligence in running the train at an unlawful rate of speed, in giving no signals, in providing no guards or barriers at the crossing, and in not having any employe at the crossing to warn persons of the approach of trains. Such negligence was charged to be the sole cause of the accident. The defendant's answer, admitting the accident and death of the intestate, denied that it was in any manner caused by the negligence of defendant or of any of its employes. The headlight of the engine was properly lighted. There was a conflict in the evidence as to whether the bell was ringing as the engine approached the street, and there was conflicting evidence as to the speed of the train. During part of the evening before the accident the intestate had been in a saloon just north of the tracks on Clermont street, a short block east of the scene of the accident, and there was evidence that he had drunk some beer or whisky, or both, and defendant claimed that he was partially intoxicated. After leaving the saloon the intestate went south across the tracks, stopped a few minutes at or near a flag shanty, and then started west, and recrossed the tracks to the north at Muskego avenue, and was struck by the train and killed. The evidence was conflicting as to whether he was within the limits of Muskego avenue when struck, or whether he was just outside the limits, and in the right of way of the defendant company. The trial resulted in a verdict and judgment for the plaintiff, from which this appeal was taken.John T. Fish, ( Burton Hanson, of counsel,) for appellant.

Austin & Hamilton, for respondent.

WINSLOW, J., ( after...