Bandekow v. Chi., B. & Q. Ry. Co.

• Decision Date: 29 September 1908
• Citation: 136 Wis. 341,117 N.W. 812
• Court: Wisconsin Supreme Court
• Parties: BANDEKOW v. CHICAGO, B. & Q. RY. CO.

136 Wis. 341

117 N.W. 812

BANDEKOW

v.CHICAGO, B. & Q. RY. CO.

Supreme Court of Wisconsin.

Sept. 29, 1908.

Appeal from Circuit Court, Grant County; George Clementson, Judge.

Personal injury action by Julius Bandekow, by guardian, against the Chicago, Burlington & Quincy Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

Defendant's railroad ran northerly and southerly through the village of Cassville, Wis., and for several blocks was laid about the center of Front street, elsewhere one of the important streets, but within the block in question substantially uninhabited and untraveled except by pedestrians. About 5 feet west of the track was a row of posts 18 inches high, supporting semaphore wires. The ordinary course of travel for pedestrians was on the track or upon the ballast close to the ends of the ties, and on the west side was between the track and these semaphore wires. On the day in question a long freight train was proceeding northward on this track, and plaintiff, a boy 9 1/2 years old, started to walk in the same direction between the space and the track. According to the plaintiff and the verdict, he was struck on the head by a “dope pail” attached to the side of one of the cars, knocked down, and severely injured. The jury found, by special verdict, that the presence of the dope pail on the side of the car constituted negligence on the part of the defendant, and that such negligence was the proximate cause of the plaintiff's injury. Motions to set aside and reverse the answers to these questions were overruled, and judgment entered upon the verdict for the damages found, from which the defendant appeals.Woodward & Lees (Lowry & Carthew, of counsel), for appellant.

Clementson & Philipson, for respondent.

DODGE, J. (after stating the facts as above).

Among some 69 assignments of error is presented one question, the answer to which, as we have determined upon it, is so conclusive, not only of this appeal, but of the final merits of the case, that we shall rest the decision thereon without discussing the other assignments. That question is whether there is any evidence which can justify the affirmative answers of the jury to the two questions of the special verdict mentioned in the statement of facts, namely, whether the defendant was guilty of negligence in having the bucket upon the side of the car, and whether such negligence was the proximate cause of the plaintiff's injury. This bucket was 9 1/2 inches in diameter. The method of attachment was by hanging the loose bail over a hand rail in the ladder upon the side of the car, thrusting through the bail upon the inside of the round and down into the bucket a long rod of iron,...