Brophy v. Milwaukee Elec. Ry. & Transp. Co.

• Decision Date: 23 December 1947
• Citation: 30 N.W.2d 76,251 Wis. 558
• Court: Wisconsin Supreme Court
• Parties: BROPHY et al. v. MILWAUKEE ELECTRIC RAILWAY & TRANSPORT CO.

251 Wis. 558

30 N.W.2d 76

BROPHY et al.

v.MILWAUKEE ELECTRIC RAILWAY & TRANSPORT CO.

Supreme Court of Wisconsin.

Dec. 23, 1947.

Appeal from an order and judgment of the Circuit Court for Ozaukee County; Edward J. Gehl, Circuit Judge.

Affirmed.Action commenced January 22, 1946, by Frank Brophy as guardian for his infant son, Patrick, and individually, to recover damages resulting to the father for hospital expenses and loss of services and for personal injuries sustained by Patrick when he was struck by one of the interurban trains belonging to the defendant, The Milwaukee Electric Railway and Transport Company. After a special verdict had been returned, in which 50% of the total negligence was attributed to each party, affidavits and statements as to the accuracy of the percentage were taken from the jurors, but on June 27, 1946, the court ordered that judgment be entered upon the verdict, dismissing the action with costs to the defendant, and judgment was so entered on July 5, 1946. Plaintiffs appeal.

The accident occurred in the city of Port Washington on the defendant's interurban cars, run in a northeasterly-southwesterly direction. On the north side of the tracks, immediately beyond the tie ends, is the path, which is about two feet in width. The tracks and the path run through an underpass that is about 65 feet long. There is a curve just west of the underpass, and because of it the walls of the underpass obstruct the view of the track beyond the curve. At the point where the tracks and path enter the underpass at the easterly entrance, the northerly tie ends extend 1.6 feet beyond the rails, and the distance from the northerly end of the ties to the northerly wall of the concrete underpass is 4.7 feet.

Along its right of way the defendant company had posted signs reading, ‘Great Danger Keep Off Trespassers Will Be Prosecuted T. M. E. R. & T. Co.’ There were such signs at the points where pedestrians customarily entered the path.

On February 7, 1944, Patrick Brophy, who was 11 years 11 months old, was riding his bicycle home from school at about 4:30 p.m. and was proceeding in a westerly direction along the path toward the underpass. At that time one of defendant's two-car trains was approaching the underpass from the opposite direction, traveling at an admittedly reasonable and lawful rate of speed. Patrick testified that as he approached the east entrance to the underpass he was watching the tie ends, which protruded considerably above the ground, in order to avoid bumping into them. He did not hear the approaching train and not until he was at the east entrance to the underpass did he see the train, which then had already entered the underpass.

The motorman who was operating defendant's train testified that he saw the plaintiff Patrick when the train was about 100 feet southwest of the underpass and the plaintiff was east of the underpass. This was as soon as it was physically possible for him to see the plaintiff, for, as the motorman testified, this was as soon as Patrick was no longer concealed by the wall of the underpass and the curve. Patrick was then approximately 288 feet from the train and was continuing toward the train when the motorman observed him. The train was one weighing 69 tons and could not be stopped in less than 257 feet on level ground. The motorman applied the brakes as soon as he saw the plaintiff. There was a slight downgrade to the tracks at that point. When plaintiff finally saw the train as he entered the east end of the underpass, he evidently reached for the concrete wall on the north, but the collision occurred and he was thrown so that his right leg was severed by the train's wheels. The impact occurred a few feet within the east end of the underpass, on the north side of the tracks, and when the train came to a stop, the boy was found on the south side of the tracks, about 23 feet east of the underpass.

Upon trial there was a special verdict. The court found Patrick negligent with respect to lookout as a matter of law. The jury made the following findings: (1) that the motorman was not negligent as to lookout, (2) that the motorman was casually negligent as to giving timely warning signals and attempting to stop the train, (3) that Patrick Brophy's negligence as to lookout was casual, (4) that he was also causally negligent in entering the subway while defendant's train was approaching but was not negligent as to his management and control of the bicycle after entering the subway, (5) that 50% of the total negligence causing Patrick's injury was attributable to Patrick and 50% to the defendant, (6) that the father's negligence in failing to warn his son against the dangers of using the path was not causal, (7) that $7,000 would compensate Patrick for his pain and suffering and disability and (8) that $2,400 would compensate the father for hospital and medical expenses and loss of his son's earnings during minority.

When the jury returned with the verdict it was read to them, and in answer to questions put by the court the jury declared it to be their unanimous verdict. The verdict was filed March 29, 1946.

On the 18th and 19th of April affidavits were procured by plaintiff's counsel from the twelve jurors. Each affidavit was to the effect that ‘all the jurors agreed and reached a verdict that the plaintiff Patrick Brophy was not guilty of 50% of all the negligence which caused his injuries * * * through inadvertance and mistake the true and actual verdict of the jury * * * was not correctly recorded.’

These affidavits were presented to the court upon motions after verdict on April 27, 1946. The court withheld rendering a decision at that time and counsel for the defendant, with the court's permission, took individual verbatim statements of each of the jurors. These were presented in opposition to plaintiff's motion for a new trial.

The verbatim statements fail to show that any other percentage than 50-50 was agreed upon. Eight of the jurors stated that the 50-50 distribution of total negligence had been agreed upon. Two of the jurors said they did not remember whether a vote was taken on the question or not, and the remaining two denied that the jury had agreed upon the 50-50 answer.

Kersten & McKinnon, of Milwaukee, for appellants.

Shaw, Muskat & Paulsen, of Milwaukee (William F. Schanen, of Port Washington, of counsel), for respondents.

FAIRCHILD, Justice.

Several issues are raised on this appeal. They can conveniently be discussed under these three questions: (1) Should additional questions of negligence have been put to the jury? (2) Does the evidence sustain the findings of negligence? (3) Is the verdict impeached by the affidavits and statements of the jurors?

As to the first of these questions, appellants contend that a question as to respondent's negligence in maintaining an attractive nuisance or in failing to erect barriers to prevent use of the path should have been submitted to the jury. The Restatement, Torts, Negligence, p. 920, § 339, states the rule regarding attractive nuisances this way: ‘A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if * * * (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it.’ It cannot be said that the path along the railroad right-of-way constitutes a structure or other artificial condition maintained by the respondent. Patrick was not attracted to the path as a place to play. He was old enough and familiar enough with the surroundings to appreciate their danger. No reason is evident for applying the attractive nuisance doctrine.

Certainly the railroad was not bound to erect barriers which would prevent use of the path. On the other hand, we recognize that it is not enough to relieve respondent of liability that notices had been posted to the effect that trespassers would be prosecuted. As long as respondent knew that such notices were generally disregarded and public use was made of the path, the law requires that the company take into account the probable presence of pedestrians and conduct its activities with reasonable regard for their safety....