Hartwig v. Chicago & Northwestern Railway Company

• Decision Date: 11 May 1880
• Citation: 5 N.W. 865,49 Wis. 358
• Parties: HARTWIG, Administratrix, v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY
• Court: Wisconsin Supreme Court

5 N.W. 865

49 Wis. 358

HARTWIG, Administratrix, v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY

Supreme Court of Wisconsin

May 11, 1880

Argued April 24, 1880

APPEAL from the County Court of Dodge County.

This action was brought by Emil Hartwig, for injuries to his person alleged to have been caused by defendant's negligence. After the death of said Emil, the administratrix of his estate, Mary Hartwig, was substituted as plaintiff. The complaint alleges that on the 30th of March, 1878, and for a long time prior thereto, there was a large, deep uncovered excavation, with perpendicular walls of stone extending across the road-bed and under the main and side tracks of said railway, on the defendant's depot grounds in the village of Juneau; that defendant had constructed said excavation more than two years before, and had from that time to the present negligently and wrongfully maintained the same, without any covering, barrier, protection or warning to prevent persons from falling into it; that on the evening of said 30th of March, Emil Hartwig was lawfully walking upon said road-bed, between the main and side tracks, on said depot grounds, going from defendant's depot to the rear end of a train of cars, standing upon said main track on said grounds, for the purpose of taking passage upon said train from the village of Juneau to the city of Watertown; that while so doing, and without any fault on his part, he fell into said excavation and received certain described injuries by reason of which he was subjected to certain specified damages; that said train was one upon which passengers were usually received and carried by defendant; that at the time mentioned defendant had the control and management of said depot grounds, depot, road-bed, railway tracks and train; and that by reason of the negligence and wrongful acts of the defendant in constructing and maintaining said excavation without any covering and in an unsafe condition, as above set forth, said Emil Hartwig received the injuries mentioned, to his damage, etc.

The answer was, in substance, that the excavation referred to was a cattle-guard, constructed and maintained at the proper place and in a proper manner, and that any injury sustained by Emil Hartwig at the time and place specified was caused by his own negligence.

After plaintiff's evidence was in, a motion for a nonsuit was denied; and defendant introduced evidence to show that the cattle-guard in question was on the north side of a highway running east and west, and was similar in size and mode of construction to the cattle-guards in ordinary use on railroads in this country; and that guards so constructed are less dangerous than those which have triangular rails over the top. A witness for plaintiff then testified that he had had some experience in building cattle-guards on railroads and that in his opinion the safest way was to cover them with three-cornered pieces of timber.

The other facts established by the evidence, as understood by this court, are sufficiently stated in the opinion.

The court, by its instructions, submitted to the jury the questions, whether the excavation into which Emil Hartwig had fallen was a cattle-guard; whether, if so, the defendant was guilty of any negligence in locating it where it was or in the mode of its construction and maintenance; and whether Emil Hartwig was guilty of any contributory negligence in leaving the depot and taking the train as he did. The court also said: "If you find that the railway company has been guilty of no negligence in the construction and maintenance of the cattle-guard, and in keeping the same in the manner they do, then you will find for the defendant. But if you find that the company is guilty of negligence in building, constructing and maintaining the cattle-guard in the manner it has done, and that by reason of such negligence the plaintiff received an injury, then you will find for the plaintiff, provided you find that he was guilty of no negligence himself in leaving the depot on a dark and stormy night and walking down the track to the caboose to take the train. You must not only find that defendant is guilty of negligence, in order to find for the plaintiff, but you must find . . . that plaintiff did not contribute to the negligence himself." "So if you find that the railroad company is guilty of negligence as stated before, and that Mr. Hartwig was guilty of negligence in leaving the depot and taking the train, then you will find for the defendant. If you find that the company is guilty of negligence in making and maintaining said cattleguard, and that plaintiff was not guilty of negligence on his part, and that by means of the negligence of the company, plaintiff received the injury, then you will find for the plaintiff." "The question of fact is for you to determine: On the facts in this case, is defendant guilty of negligence in making the cattle-guard and leaving it in the shape it is? If it is not, then you find for defendant. If defendant is guilty of such negligence, and Hartwig was guilty of no negligence, then you find for the plaintiff."

The following instructions asked on defendant's behalf were refused: 1. "The evidence is not contradicted that the construction and condition of the cattle-guard were in accordance with the construction and condition of cattle-guards in general use in the country; and the question of its proper construction and condition is withdrawn from the jury." 2. "If plaintiff was informed, on the night in question, that the train would not be hauled up to the depot platform to allow him to get on the train, he had no right to take another way to get on the cars, and put himself in peril; and if he did, and was hurt, he cannot hold the company liable for such injuries." 3. "If the testimony leaves the question of plaintiff's negligence or that of the defendant doubtful, plaintiff cannot recover." The court, however, gave the second of these instructions modified by adding, "if you find he put himself in such peril." It also charged the jury as follows: "The statute of Wisconsin requires defendant to construct and maintain cattle-guards at all highway crossings, and connect its fences. therewith to prevent...