Anderson v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 23 February 1894
• Citation: 58 N.W. 79,87 Wis. 195
• Court: Wisconsin Supreme Court
• Parties: ANDERSON v. CHICAGO, ST. P., M. & O. RY. CO.

87 Wis. 195

58 N.W. 79

ANDERSON

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

Supreme Court of Wisconsin.

Feb. 23, 1894.

Appeal from circuit court, Ashland county; J. K. Parish, Judge.

Action by Emma Anderson, administratrix of the estate of Fred Anderson, deceased, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company, for damages for negligence causing intestate's death. Judgment for plaintiff. Defendant appeals. Reversed.

Orton, C. J., dissenting.

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

This action was brought to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant on the 19th of November, 1892. It was alleged that, at the time mentioned, the said Fred Anderson was lawfully traveling along and crossing a portion of the track of the defendant which was used for several years, and down to the time of the accident, with defendant's knowledge and consent, for the purpose of a footway by foot travelers at or near the intersection of Sixteenth avenue west and Third street, in the corporate limits of the city of Ashland; that the defendant, by its servants, etc., carelessly and negligently caused one of its locomotives, with a tender and two passengers cars, to pass over and across said railway track and said traveled way at the rate of about 30 miles an hour, and negligently failed to give any signal by bell or whistle of its approach, so that the said Anderson was unaware of the approach of said engine and cars; and by reason of such fault and negligence of the defendant, while so traveling along said footway upon said railroad, without fault or negligence on his part, said Anderson was struck by said locomotive and killed. And the complaint contained other appropriate averments, and claimed damages in the sum of $5,000. The defendant admitted that Anderson was walking on its track at the time in question, and across one of its bridges, and was struck by a locomotive and train of cars of defendant, and killed, but denied all other material allegations of the complaint. At the trial before a jury, it was testified, in substance, by one Swanson, on the part of the plaintiff, that on the morning in question, about half past 6 o'clock, Anderson came to his house, and they went down town to see if there were any lumber boats in; that they went across the bridge to Swan Swanson's, on Second street, where they had some whisky and hot water to drink, and then went to the bay, and in about half an hour returned to Swanson's, where they had two more drinks of the same kind, talked together, and read a paper, and started for home; that they got another drink at the billiard hall,--straight whisky,--and went right out, thence up Fourteenth avenue, to the railroad, and then took the railroad track west. In going home they went the usual way, and crossed the trestle; “used it all the time. People crossed it most every hour,--men, women, and children. When we got to the trestle, I turned around to look behind, and I looked ahead. Did not see any train, nor hear any bell or whistle sounded, before we got on the trestle. We walked out on the trestle, and the bell was rung. I looked ahead, but did not see any locomotive, and I turned partly around to see if the train was coming on the Northern Pacific track. Saw no train there, and I turned around a little more. Looked behind me again. I did not see any train there. Turned clear back. I looked ahead, and saw the train coming about 200 feet from us. That is the first I saw of it. I said: ‘Anderson, the train is coming. We will have to jump.’ I leaned myself over the edge of the bridge, and hung onto the bridge. Anderson, as far as I could see, turned sideways to try to get off, and one of his feet slipped, and he got between the ties. Then he went down, and did not get away from that place before the train struck him. I did not turn and run back, because I thought I hadn't time. He was dead when I next saw him. The train was the ‘Bayfield Scoot.’ I knew that train came along every morning about a quarter to ten o'clock. When on the railroad track, did not think of the train. Thought it had got to the depot already. Anderson was walking on the left hand, and I on the right. I think he had hold of my arm. Was about thirty-three feet on the bridge when I heard the bell ring. It is not a fact that Anderson and I were quite full that morning. He was not staggering as he went along with me. He had hold of my left arm. Sometimes, when walking together, he used to take hold of my arm, but not because he was drunk. We were friends. He lived on 16th avenue, in sight of this trestle, near 5th or 6th street. I lived on 4th street, only a short distance from the west end of the trestle. I was not so drunk but what I knew what I was about, and Anderson was not. He was able to walk. The train was running as it usually did. Cannot tell how many miles an hour.” Considerable evidence was given to the effect that it was a common occurrence for everybody to travel over this trestle every day, and all classes of people, at the time of the accident, and had been for some four years; that the ordinary rate of speed in passing over it was about 30 to 35 miles an hour. The plaintiff was allowed, against objections of the defendant, to show by one Weed, and also by one Oleson, that, for two or three days or so after the accident, the train ran very slowly over the trestle, and that in a couple of weeks they ran at their former rate of speed again. There was no planking or footway on this bridge; simply the open trestle. They had to step from tie to tie in crossing it. It was 120 feet long, and Anderson was killed 33 feet from the east end, on the east side of Fifteenth avenue, as he and Swanson were going towards the train approaching from the west. The ravine at the deepest point was 23 feet deep. There was another like trestle over a deep ravine to the west, 189 feet long, and the interval between the two was 139 feet--both on the main track or line of defendant, and used by pedestrians to about the same extent. Going west from the east end of the first trestle, there is a curve in the track to the right, and both are embraced in the curve. The view from the east to the westward along the track was somewhat obstructed by a bank of earth and a building. But it was shown that a person in an engine cab, coming from the west, could see persons on the trestle work at the point where Anderson was struck for a distance of 456 feet. That the whole of the man and the entire track could be seen, and the ties distinguished. There was a plank crossing at the east end of the first trestle, and one could go from there down to Third street with a wagon. That Fifteenth avenue, within the limits of which Anderson was struck, had never been opened, nor had Sixteenth, Seventeenth, Eighteenth, and Nineteenth avenues to the westward. The train, at the time of the accident, had not passed all the traveled streets of Ashland. The railroad crossed the avenue nearly at a right angle, and the streets were at right angles with the avenues. The plaintiff having rested, the defendant moved for a nonsuit, on the ground that there was not sufficient proof of negligence on the part of the defendant, and that the plaintiff's intestate was guilty of contributory negligence, but the motion was denied. It was testified on behalf of the defendant, among other things, by the engineer, that the train, at the time in question, was running along at the rate of 8 or 10 miles an hour. That the first he saw of Anderson was when he was within 6 or 8 feet of him. That he could not see him before from the west end of the trestle, on account of the curve and the engine being in the way, but could see from the east end of the trestle westward 350 feet. That the first information he had that there was anything on the track was when the fireman gave him the signal to stop and apply the brakes; and, just about the time he had applied the brakes, the fireman said, “Man on the track!” and then he reversed the engine, and blew the whistle, and reached for the sand lever, and then he saw the man on the track 6 or 8 feet ahead. That he was somewhere between the two trestles, about the middle, when the fireman gave the signal to stop. Made a good stop. Could stop that train at about 150 to 200 feet from getting the signal, when going at the rate of 6 or 8 miles an hour; at 20 miles an hour, about 400 feet; and at 35 miles, between 700 and 800 feet. There was testimony on the part of the plaintiff tending to show that the train might have been stopped in a shorter distance. The fireman testified, among other things, that the rate of speed was 5 or 6 miles an hour, and he was ringing the bell all the time. When he first saw the men, it was difficult to tell where they appeared to be, on account of the curve. First discovered they were on the trestle when he gave the signal to stop. Was then in view of the whole bridge. It was admitted that no warning had been put up to keep the public off of the bridge, and it was shown that no gates had been put up to keep people from crossing; that there were gates on some streets west of the depot towards the junction. The evidence tended to show that the running time between Ashland and the junction was 15 minutes, and the distance 4.3 miles. The conductor testified, among other things, that on this occasion they were running at about the usual rate of speed after they left the switch where they bring lumber onto the track from the Bay Front line, which it was admitted was 2,250 feet west of the east end of the trestle on which Anderson was killed; and from the plat in evidence it appeared to be somewhat further than that distance from Ashland station to where Anderson was struck. Evidence was given tending to show that, at the time, Anderson was drunk, so that he staggered; and, in rebuttal, to...