53 N.W. 743 (Wis. 1892), Schmolze v. Chicago, Milwaukee & St. Paul Railway Co.

Citation:53 N.W. 743, 83 Wis. 659
Opinion Judge:WILLIAM P. LYON, C. J.
Party Name:SCHMOLZE, Respondent, v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
Attorney:For the appellant there was a brief signed by John T. Fish and Curtis, Curtis & Reed, attorneys, and Geo. P. Cary, of counsel, and the cause was argued orally by Burton Hanson and Geo. P. Cary. For the respondent there was a brief by Bump & Kreutzer, and oral argument by E. L. Bump and D. Lloyd J...
Case Date:November 15, 1892
Court:Supreme Court of Wisconsin
 
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Page 743

53 N.W. 743 (Wis. 1892)

83 Wis. 659

SCHMOLZE, Respondent,

v.

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

Supreme Court of Wisconsin

November 15, 1892

Argued October 27, 1892.

APPEAL from the Circuit Court for Lincoln County.

The defendant company appeals from a judgment against it for $ 4,000 and costs, recovered by plaintiff in an action for personal injuries alleged to have been caused by the negligence of the servants of the company in operating one of its locomotives on its railroad at a point on the Wisconsin Valley division thereof, in Oneida county, known as Harshaw.

At that point there is a sawmill and lumber yard, a store and hotel, all owned and carried on by the firm of Norway & Wiley, together with a few dwelling houses occupied by employees of the firm. A spur track leads from the main track to the lumber yard. Trains running on the railroad stop at Harshaw when there is any occasion for so doing, but it is not a regular railway station. The company had no agent or depot at, nor time schedule for, Harshaw, and the most of its trains running on that division passed there without stopping.

The railroad runs nearly north and south through Harshaw. The sawmill of Norway & Wiley is on the west side of it, and the east side of the mill is thirty feet west of the track. The store is near the track, on the east side thereof, from which it is separated only by a platform a few feet wide, and is about twenty rods south and a little east of the sawmill. The spur track leaves the main track a few rods south of the store.

Plaintiff testified on the trial that on August 28, 1891, he was at work for Norway & Wiley in the sawmill, as a millwright and carpenter, and had been at work there during the four next preceding months. At about 1:30 P. M. of that day he started to go to the store on an errand. He passed out at the southwest corner, and walked along the south end of the mill until he reached the southeast corner thereof. When one or two steps past that corner he looked up and down the railroad track, but saw no train. His range of vision on the track from that point to the north was about 400 feet. He continued to walk in a southeasterly direction, going about forty or fifty feet before he reached the track. He stepped between the rails, and had walked between them diagonally, to the southeast, probably sixteen or twenty feet, when he heard an alarm signal, and was immediately struck by a locomotive engine running south on the track, and received the injuries complained of. He was walking slowly, with his head down, and did not stop, and did not look either way along the track for trains. The result of the injury was that one of plaintiff's legs was necessarily amputated four or five inches above the ankle. He was then twenty-four years of age, and had a wife and child dependent upon his earnings for support.

It is conclusively proven that as the plaintiff approached the track his range of vision along the same to the north constantly lengthened, and when he stepped between the rails, and until he was struck by the locomotive, he could, had he looked, have seen the track to the north for eighty rods, without obstruction.

The locomotive which struck plaintiff belonged to a regular daily freight train which usually passed Harshaw, going south, about 12:30 P. M. On the day that plaintiff was injured this train was nearly or quite one hour late, and plaintiff supposed it had passed before he started for the store. At a point thirty rods or more north of the place of injury, the locomotive was uncoupled from the train for the purpose of...

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