FLYNN v. E. Ry. Co. of Minn.

• Decision Date: 25 October 1892
• Citation: 83 Wis. 238,53 N.W. 494
• Parties: FLYNN v. EASTERN RY. CO. OF MINNESOTA.
• Court: Wisconsin Supreme Court

83 Wis. 238

53 N.W. 494

FLYNN

v.EASTERN RY. CO. OF MINNESOTA.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Appeal from circuit court, Douglas county; R. D. MARSHALL, Judge.

Action by James Flynn, administrator, against the Eastern Railway Company of Minnesota. From a judgment for plaintiff, defendant appeals. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

This action was brought to recover damages for injuries which resulted in the death of Annie Flynn, plaintiff's intestate, alleged to have been caused by the defendant in the negligent operation of its trains in the city of Superior, December 6, 1890. The defendant owned a right of way, and operated said railroad tracks upon the same, in the city of Superior, which intersected and extended across at right angles a certain way in said city commonly known as “Belknap Street.” At the time of the accident it had 14 tracks on said right of way, extending across said Belknap street at right angles and parallel with each other. The space between the tracks was 8 feet, and from center to center 13 feet. Most of these tracks were constructed in 1888, and they comprised, as a matter of fact, a part of the defendant's yards, and were in constant use by the defendant in the operation of its railroad, either for the storing of cars or the making up of trains and switching and transferring of cars from one track to another. It was a matter of dispute between the parties as to whether the evidence showed that the way or road which has been referred to, commonly called “Belknap Street,” was in fact a legal highway, or whether it was simply a place where people were accustomed to cross and recross without right, but without objection on the part of the railroad company. The remaining facts in the case are practically undisputed. The 14 tracks in question ran nearly north and south, and Belknap street crossed them almost at right angles. The main and business portion of the city of Superior lies several blocks east of these tracks. About a mile west of the tracks is located the plant of the West Superior Iron & Steel Company, at which plant, at the time this accident happened, several hundred men were employed, many of whom lived in the immediate vicinity of the plant. The way or road known as “Belknap Street” afforded the nearest communication with the city of Superior for a large part of the people who resided near the steel plant. Two other streets afforded communication with the city, to wit, Winter street, one half mile north, and Twenty-First street, one half mile south, of Belknap street. It very clearly appears from the evidence that from the time these tracks were put down, in 1888, up to and after the time of this accident, the tracks of the defendant at this way, called “Belknap Street,” were crossed by people going to and from the steel plant in large numbers daily, and that the railroad company had never stopped such practice, nor erected any fence to stop it. But it appeared also that the company kept upon such tracks, almost constantly, trains of cars completely blocking the alleged way, and that there were generally half a dozen or more of such trains standing completely across said crossing, and that it was the custom of people crossing the tracks at that place to crawl through, under, and between the cars in order to make such crossing. The crossing was not planked, nor in any way prepared for the passage of teams, nor had any sidewalks been constructed on either side. The deceased lived at or near the steel plant at the time of the accident. She and her sister, Abbie Flynn, left home together December 6, 1890, and went to West Superior, crossing at Winter street. They started to return home about half past 4 o'clock in the afternoon, and attempted to use Belknap street upon their return. As has been said, the tracks at the intersection of Belknap street ran north and south, and were straight, and the view of them was unobstructed, for a long distance. The first track which the deceased reached on her return home was the main track, and no cars were standing thereon. The next three tracks were also free from cars at the crossing, and for a long distance north and south. It clearly appears that the next five or six tracks, at least, were full of cars standing on the crossing, and extending beyond it north and south. As the deceased and her sister approached the crossing from the east on their way home, the first cars they came to, as they attempted to cross, were standing on the fifth track. The train standing on this...