Bohan v. Milwaukee. L. S. & W. Ry. Co.

Citation15 N.W. 801,58 Wis. 30
PartiesBOHAN, BY HIS GUARDIAN, v. MILWAUKEE. L. S. & W. RY. CO.
Decision Date31 May 1883
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from circuit court, Ozaukee county.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant company. The railway of the defendant from Milwaukee passes north through the west portion of the city of Port Washington, crossing a highway leading into the city from the west. The depot of the company in Port Washington is located on the east side of the railway a short distance north of the highway, and the depot platform extends south to the highway. On the evening of June 5, 1882, the plaintiff, who resides west of the railway and street crossing, started from the city for his home. When he reached the crossing, he went upon the depot platform, and remained there a short time conversing with some friends. He then left for home, and when crossing the west rail of the track was struck and injured by a gravel car, which was, with two others, being pushed by the locomotive attached to a regular train from the south, then due at the depot. This happened about 10 o'clock in the evening, and is the injury complained of. The three gravel cars occupied a space of over 100 feet on the track ahead of the locomotive. The plaintiff testified that as he was about to cross the track he looked south and saw the head-light of the locomotive, which he thought was about at a switch, admittted to be at least 200 feet south of the point where plaintiff was struck. He further testified that he saw nothing on the track ahead of the locomotive. Several other witnesses testified that they each saw the head-light of the approaching train, but neither of them saw the gravel cars ahead of the locomotive until the moment the plaintiff was struck. These were platform cars, and the testimony tends to show that they had gravel upon them, but no light or other signal of their presence there. On the above testimony the circuit judge nonsuited the plaintiff, but subsequently, at the same term, made an order setting aside the nonsuit and granting a new trial. From such order the defendant company appeals.

ORTON, J., dissents.George W. Foster, for respondent, Frank J. Bohan, by guardian.

Alfred L. Cary and Bradley G. Schley, for appellant, Milwaukee, L. S. & W. Ry. Co.

LYON, J.

We agree with the learned counsel for the defendant that no question of judicial discretion is here involved. The only question presented by this appeal is, was or was not the nonsuit properly granted? If it was, the order setting it aside and granting a new trial is erroneous and should be reversed; if it was not, the order should be affirmed. Unless it was conclusively proved, either that the defendant was not guilty of any negligence which caused the injury complained of, or that the plaintiff himself was guilty of negligence which contributed thereto, the nonsuit should not have been ordered. The question to be determined is, were either of these propositions so established?

On the one hand, the failure of the defendant to place a light upon the forward gravel car, to indicate the presence of the gravel cars ahead of the locomotive, is alleged as negligence of the defendant. On the other hand, it is claimed that the head-light of the locomotive rendered those cars visible to persons at the street crossing, and that had the plaintiff used proper care when he saw the head-light, he would have seen the gravel cars in advance of the locomotive. Had the locomotive been at the head of the moving train, it will scarcely be claimed that the plaintiff was negligent in attempting to cross the track before it, for the proof shows that he had ample time in which to cross before the locomotive reached the crossing. At least, it could not be held as a proposition of law that his attempt so to cross the track was negligence. It would be for the jury to say whether it was or not. Had the plaintiff known that over 100 feet of the track in advance of the approaching locomotive was occupied by the gravel cars, it seems clear that he would have been chargeable with negligence in attempting to cross the track ahead of the moving train; especially so when there is no pretense of the existence of any emergency which required him to cross before the train passed or stopped. If by the exercise of proper care and scrutiny the plaintiff would or might have seen the gravel cars, his failure to discover them was, in the like manner, negligence. If the plaintiff is chargeable with negligence because he failed to see the gravel cars, he is so because the head-light sufficiently disclosed their presence. It is not in proof that cars are usually propelled in advance of regular trains,--presumably they are not, especially in the night-time,--and no means other than the head-light is suggested by which the plaintiff might have informed himself that such cars preceded the locomotive.

On the other hand, it is not unlawful for railway companies to propel cars by pushing them in advance of the locomotive by which they are propelled when the exigencies of their business require it to be done. If they do so under circumstances which increase the risks of injury to persons or property, the law places them under obligation to give timely and suitable notice or warning, in some manner, of what they are doing. In this case it does not appear that the gravel cars could be distinguished or their presence discovered by persons at the street crossing, when the plaintiff attempted to cross the track, unless by aid of the head-light. If, therefore, the head-light did not disclose to persons at that point, using proper care and watchfulness, that the locomotive was preceded by the gravel cars, the defendant company was negligent in not furnishing some other and more effectual signal or notice of the fact. Hence, the case seems to turn upon the question of the sufficiency of the head-light to enable the plaintiff to discover the gravel cars by exercising due care and scrutiny. If it was sufficient, the plaintiff was negligent and the defendant was not. If it was not sufficient, the result is reversed--the defendant was negligent and the plaintiff was not.

All of the witnesses who testify on the subject say that they saw the headlight of the...

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13 cases
  • Johnson v. The Missouri Pacific R. Co.
    • United States
    • Supreme Court of Nebraska
    • 6 Enero 1886
    ...N.W. 467. Buell v. N. Y. Central, 31 N.Y. 314. Miller v. U. P. Ry., 4 McCrary, 115. Miller v. U. P. Ry., 5 McCrary, 300. Bohan v. Mil., L., S. & W. Ry. Co., 58 Wis. 30. Ferguson v. Wis. Central Co., 23 N.W. 123. Knowlton v. Mil. City Railway Company, 59 Wis. 278. N. W. Railway Company v. Ba......
  • Dohr v. Wis. Cent. Ry. Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • 6 Enero 1911
    ...all the circumstances in evidence has been frequently said by this court to be “peculiarly the function of the jury.” Bohan v. M., L. & W. Ry. Co., 58 Wis. 30, 15 N. W. 801;Fitts v. C. C. Ry. Co., 59 Wis. 323, 18 N. W. 186. It has been also called a mixed question of law and fact, which is ......
  • Louisville & N.R. Co. v. Lowe
    • United States
    • Court of Appeals of Kentucky
    • 19 Febrero 1902
    ...... movements or give warning of their approach. Kay v. Railroad Co., 65 Pa. 269, 3 Am. Rep, 628; Railroad. Co. v. McGinnis, 71 Ill. 346; Bohan v. Railway. Co., 58 Wis. 30, 15 N.W. 801. A locomotive is. practically run in the same way when those in charge of it. give no signals and ......
  • Chicago, Burlington & Quincy Railroad Company v. Clark
    • United States
    • Supreme Court of Nebraska
    • 31 Mayo 1889
    ...and Sawyer & Snell, for defendants in error, cited: Frick v. St. Louis, K. C. & N. Ry. Co., 75 Mo. 595; Bohan v. The Milwaukee, Lake Shore & Western R. R. Co., 58 Wis. 30; Worthen v. Trunk Ry. Co., 125 Mass. 99; Patterson, Railway Accident Law, 424; Van Horn v. B. C. R. & N. Ry. Co., 59 Iow......
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