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

• Decision Date: 20 November 1883
• Citation: 17 N.W. 406,58 Wis. 646
• Parties: DAVIS v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

58 Wis. 646

17 N.W. 406

DAVIS

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

Supreme Court of Wisconsin.

Filed November 20, 1883.

Appeal from circuit court, Jefferson county.

I. W. & G. W. Bird, for appellant, John H. Davis.

W. R. Vilas, for respondent, Chicago & Northwestern Railway Company.

TAYLOR, J.

The appellant brought this action to recover damages resulting to him from the explosion of a steam-boiler of the respondent company. The steam-boiler which exploded and caused the injury was used for working a pile-driver, and at the time was on a flat car on a side track on the right hand of the main line going north from the depot in the city of Fort Atkinson. About 35 minutes before the explosion took place, the men in charge of the steam-boiler and pile-driver left the same and went into the city to take their dinner. During this 35 minutes none of the employes of the respondent were in charge of the pile-driver or steam-boiler. When the employes in charge left, there was a strong fire in the fire-box, and as the proof tends to show plenty of water in the boiler, and according to the evidence of the engineer in charge the safety-valve was set so as to blow off steam at 110 pounds pressure.

The cause of the explosion was not very clearly shown on the trial, but there was evidence which strongly tended to show that the boiler was either originally made of brittle and imperfect iron, or that it had become so by use, and that the steam did not blow off under a pressure of 120 pounds, which all admit was a dangerous pressure. Upon the trial, and after all the evidence was in, the circuit judge directed a verdict for the defendant. This verdict was directed, as is stated by the learned counsel for the defendant, “upon the simple ground that the alleged negligence, which the appellant claimed the defendant was answerable for, was not a breach of any duty which the defendant owed to the appellant in the position in which the appellant had placed himself. The simple fact is that the plaintiff went upon the ground of the defendant uninvited, and in pursuit of his own personal ends, and was there injured by the accidental explosion of a boiler belonging to the defendant, and rightfully being where it was.” The location of the place where the accident took place is fully described in the bill of exceptions, and is briefly as follows: The defendant's track runs nearly north and south through the city of Fort Atkinson, and crosses the Rock river on a bridge running in the same direction. The depot is south of the bridge about 400 feet. It is claimed by the appellant that there are two public streets which cross the line of the railroad track, east and west, north of the depot and south of the bridge. The first street north of the depot is Milwaukee street. About the existence of this street there is no contention. North of Milwaukee street and south of the river, the appellant claims there is a public street crossing the defendant's track, in an east and west direction, called South Water street. The defendant denies that this street crosses the track, but admits that it is an open public street east of the track.

The appellant claims that there is also a public street running north from South Water street to the river, and that the defendant's track crosses this street in a north-easterly direction. The place where the pile-driver stood when the boiler exploded was within the limits of what the appellant claims is South Water street; and if the street is a public street its entire width across the track, there is no doubt but that the pile-driver stood in that street. The appellant was about 50 feet north of the pile-driver and 500 feet north of the depot when the explosion took place; and counsel for the appellant claims that he was within the limits of the street he calls Lumber street. The evidence shows that the right of way of the respondent was fenced on both sides thereof, from what is claimed to be the north side of South Water street to the river, and on the west side again from the south side of what is claimed to be South Water street in a southerly direction, leaving a space between the ends of the fence on the west side about the width of South Water street. For a considerable distance north of the south line of what is called south Water street, the right of way was filled with lumber piles on the east side and cord-wood on the west side, leaving only room for two railroad tracks. The west track was the main track and the east one the side track, on which the pile-driver stood when the explosion took place. The lumber piles on the east side of the track extend across what is claimed to be South Water street, except an opening of about 18 feet near the south side of the line of said street. The respondent claims that this opening was a private crossing used by Wilcox, the owner of the lumber-yard, and was known as Wilcox crossing, and was not a public street in any sense; at all events, not exceeding in width the 18 feet which he designates as Wilcox crossing. Wilcox's lumber and timber piles extend north, along the east side of the right of way, to within 50 feet of the river, occupying a great portion of the east part of the respondent's right of way. On the west side Wilcox's woodpiles occupied the west part of the right of way about 40 or 50 feet north of the crossing.

The appellant claims that for 20 years or more--in fact, ever since the company built its bridge across the river--the public have constantly used the bridge to cross from the north to the south side of the river, and vice versa; and the right of way of the railroad south of the river, as far south as Milwaukee street, as a traveled way from the bridge south to reach South Water and Milwaukee streets; the place where the people traveled was between the side track and the main track; and that the respondent had full knowledge of the fact that such right of way had been and was so constantly used for foot travel; and that no protest or objection had been made by said company to the use of its right of way for that purpose. The evidence also shows that the day before the accident happened the respondent was repairing the bridge, and the trains from the north did not cross the bridge; the passengers and baggage were transferred across the bridge on a hand car, or passed the bridge on foot, to the train on the south side of the river; that on the day the accident happened the train stopped for a few minutes on the north side, but finally passed over the bridge; some of the passengers got off on the north side and passed the bridge on foot; that the plaintiff, who was a hotel-keeper, came to defendant's depot to solicit passengers for his hotel, and seeing the train stop north of the river, and passengers alighting therefrom, and perhaps supposing the train would not cross, started north along the traveled track between the side and main track to meet the passengers from the train, and when about 50 feet north of the pile-driver, while walking along the said traveled path or track, the boiler exploded and he was injured.

It is said the ruling of the court below was that the plaintiff was either a trespasser on the defendant's right of way, or at best a mere licensee thereon, and could not, therefore, recover of the defendant company, unless he showed “that he was injured by the willful misconduct of its servants or employes,” and thereupon directed a verdict for the defendant.

The learned counsel of the appellant claims that the evidence tends to show-- First, that the boiler and pile-driver, when it exploded and injured the appellant, was standing within the limits of a public street of the city of Fort Atkinson; second, that the appellant, when injured, was passing along a public street of said city; third, that if he was not in a public street when injured he was traveling along a beaten path between the railroad tracks, and not on the same, which had been used by the public for passing north and south over Rock river from Milwaukee street south to a public street on the north side of the river; and that for 20 years this way had been used by the public traveling on foot between said points with the knowledge and acquiescence of the railway company; fourth, that it was at least a want of ordinary care, if not gross negligence, on the part of the persons in charge of the pile-driver and steam-boiler, to leave it unattended for the space of more than half an hour in the place and in the condition it was immediately before and at the time the boiler exploded and caused the injury.

It is not seriously contended, on the part of the learned counsel for the respondent, that if the first two propositions are sustained by the evidence, or that if the evidence was such as would justify the finding of a verdict sustaining these propositions, then the ruling of the court directing a verdict for the respondent was error, and the judgment must be reversed. We think it would also be clear that the verdict was improperly ordered, if the evidence given on the trial showed that the appellant was in a public street of the city when the explosion took place. If that fact were proven there could be no charge made against the appellant that he was guilty of any fault which contributed to his injury, and, having a right to be upon one of the public streets of the city, the railway company was bound to use ordinary care, at least, to prevent an injury to him. And, as seen hereafter, we are very clear that the evidence tended to show that the persons in charge of the pile-driver and boiler were not in the exercise of ordinary care when the explosion took place.

We are not prepared to say that there is sufficient evidence to sustain a verdict finding that the appellant was within a public street of the city when he was injured; and we would be unwilling to reverse the ruling of the circuit judge upon this point alone. Upon the second point, that the pile-driver...