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

• Decision Date: 06 November 1884
• Parties: BOHAN v. MILWAUKEE, L. S. & W. RY. CO.
• Court: Wisconsin Supreme Court

61 Wis. 391

21 N.W. 241

BOHAN

v.MILWAUKEE, L. S. & W. RY. CO.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Appeal from circuit court, Ozaukee county.

G. W. Foster, for respondent.

Alfred L. Cary, for appellant.

LYON, J.

This case was here on a former appeal, and is reported in 58 Wis. 30;S. C. 15 N. W. REP. 801. The nature of the action and the facts of the case are there sufficiently stated, and will not be repeated here. The case has been again tried, and the trial resulted in a judgment for the plaintiff, from which the defendant has appealed. The testimony on the part of the plaintiff on the last trial is substantially the same as that introduced by him on the first. By reference to the report of the case in 58 Wis. 30,S. C. 15 N. W. REP. 801, it will be seen that the defendant introduced no testimony on the first trial. The grounds upon which the judgment went on the first appeal will appear by the following extract from the opinion: “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.” It was held that, under the circumstances of the case, the question whether or not the head-light was sufficient to enable the plaintiff, exercising proper care, to see the gravel cars, was for the jury. There was no proof, on the first trial, that a lighted lantern was held on the forward end of the first gravel car from the depot, or that the train bell was rung immediately before the plaintiff was injured. On the last trial, four witnesses, produced on behalf of the defendant, each testified that a brakeman stood upon the forward end of that car with a lighted lantern in his hand, plainly visible, from the time they left the gravel pit (nearly one-half mile south of the depot) until the train reached the depot. These witnesses were the conductor, engineer, and fireman on the train which injured the plaintiff, and the brakeman who held the lantern. There is a switch 230 feet south of the depot, and three of these witnesses testified that the engine bell was rung constantly while the train was passing from a point several rods south of this switch to the depot. The plaintiff and several witnesses introduced by him each testified that he saw the head-light of the approaching train when a short distance south of the depot platform, but saw no person on the forward end of the first gravel car, nor any light at that place, and that he does not remember to have heard the engine bell ring before the plaintiff was injured. This is all the testimony which in any manner tends to throw doubt upon the statements of the defendant's witnesses as to the ringing of the bell, or the presence of a lighted lantern on the gravel car.

It satisfactorily appears from all the evidence...