Brinilson v. Chi. & N. W. Ry. Co.

• Decision Date: 31 January 1911
• Citation: 144 Wis. 614,129 N.W. 664
• Court: Wisconsin Supreme Court
• Parties: BRINILSON v. CHICAGO & N. W. RY. CO.

144 Wis. 614

129 N.W. 664

BRINILSON

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Jan. 31, 1911.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by Martin Brinilson, as administrator of Douglas Brinilson, deceased, against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff's intestate, a boy of the age of 5 1/2 years, on February 22, 1906, fell into a steam and hot water pit, constructed by the defendant in a breakwater which it maintained to protect its property along the shore of lake Michigan in the city of Milwaukee. The boy was so badly scalded by the steam and hot water discharged into this pit from the roundhouse of the defendant near by that he died on March 5, 1906. The pit into which the boy fell was in the center of a crib in the breakwater, was about three feet in diameter at the bottom, possibly five feet in diameter at the top, and six or seven feet deep. In the previous October the defendant had removed the stone from the crib so as to form the pit above described, and had laid an underground conduit from its roundhouse to the center of the pit. The pit was covered by planks which were a part of the planking covering the breakwater. The child fell into the pit through an opening about a foot wide and from six to seven feet long made by the removal of part of a plank of that size in the breakwater covering. The boy and an older brother were walking over part of the breakwater and into the railroad yards, where they looked for tin plates and some colored glass thrown from the dining cars of the defendant. The complaint alleges that the breakwater was made a pleasant promenade by being covered with planking, that no obstructions were so placed as to prevent its use by the public, and that the people were not excluded from walking upon it. It is alleged that the death of the boy was due to the negligence of the defendant in permitting a dangerous hole to exist in the covering of the pit in the manner stated, and damages are asked for the death of the boy, thus caused, and for the pain and suffering endured by him in consequence of his injuries during his lifetime.

The evidence tends to show that the defendant's agents and servants knew that the public were using the breakwater and the adjacent grounds for walking, fishing, and swimming, but that notices of “No thoroughfare” were posted to warn people off of the tracks, and that people, boys particularly, were expelled from the tracks. The breakwater extends north from Polk street. The evidence as to whether or not a fence extending east from a building belonging to the defendant along the north line of Polk street extended over the breakwater at the time of the accident is in conflict. There was evidence that the hole in the planking on the breakwater had existed for some weeks before and up to the time of the accident, and that it was a dangerous trap to persons walking on the breakwater. Various witnesses testified that they had seen the hole in the covering of the breakwater two or three months before the accident, a month or two before the accident, two weeks before it, and also on the day before the accident. There was evidence tending to show that this opening was difficult to see because of the steam arising from the hole and from the cracks between the other planks, and because of the conditions surrounding it. The jury found that the defendant was negligent and that it caused the injury, and awarded damages. This is an appeal from the judgment on the verdict in plaintiff's favor.William G. Wheeler, for appellant.

N. L. Baker and W. J. Zimmers, for respondent.

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

The appellant avers that the place where the boy was injured is its property. This the respondent denies, and asserts that the place of injury is located on the bed of Lake Michigan, and hence not within the boundaries of the appellant's private grounds. In the view we take of the case, this question need not necessarily be considered in determining the issues raised, and we therefore do not decide this controversy between the parties.

It is undisputed that the appellant...