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

• Decision Date: 25 April 1889
• Citation: 74 Wis. 239,42 N.W. 237
• Parties: HEDDLES v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

74 Wis. 239

42 N.W. 237

HEDDLES

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

Supreme Court of Wisconsin.

April 25, 1889.

Appeal from circuit court, Rock county.

This action is to recover for injuries sustained by the plaintiff while traveling along on Wall street, in Janesville, where the same is crossed by the defendant's railway tracks, on the afternoon of November 18, 1887, by being negligently and carelessly run over by a locomotive engine of the defendant, by reason of which he claimed $50,000 damages. The negligence and carelessness thus alleged related to the operating the engine, its unlawful rate of speed, the failure to blow the whistle or ring the bell, the absence of guards or gates or watchman at the crossing, or any sign-board with the inscription “Look out for the Cars.” The answer was a general denial, and an allegation of contributory negligence on the part of the plaintiff. At the close of the trial the jury returned a special verdict to the effect: (1) That the engine, as it approached the place of the accident, was being run at a greater rate of speed than six miles an hour, (2) without the whistle being blown, (3) and that such failure to blow the whistle directly contributed to produce the injury, (4) notwithstanding the engine bell was rung before and while the engine was crossing Wall street; (5) that there was no gate erected and maintained on Wall street, (6) although it was necessary for the safety of human life, and to protect from injury persons lawfully passing along that street, that a gate should be erected and maintained at that crossing, (7) and the failure to so erect and maintain the same directly contributed to produce the injuries in question, (6 a) and in such failure the defendant was guilty of negligence, (6 b) and such negligence contributed directly to produce such injuries; (8) that there was no flagman placed at that crossing to warn travelers of the approach of trains, (9) notwithstanding it was necessary for the safety of persons lawfully traveling that street that a flagman should be placed at that crossing; (9 a) and the defendant was negligent in not placing a flagman there; (9 b) and such negligence directly contributed to produce the injuries in question; (10 and 11) but there was no ordinance of the city of Janesville requiring such gate or such flagman; (12) that there was no sign-board put up at said crossing with the inscription thereon, “Look out for the Cars;” (13) but such absence of such sign-board did not directly contribute to produce said injuries; (14) that at the time of such injury, the plaintiff was a bright, active, intelligent boy, for one of his age, (15) and comprehended that the crossing of the railway track at that place was attended with danger, (16) but did not see the engine approaching the place of the accident before attempting to cross the track, (17) although shortly before attempting to cross he looked in the direction from which the engine approached; (18) but immediately prior to the time he started to so cross his attention was attracted by a train moving south upon the Chicago, Milwaukee & St. Paul track, at which he was then looking; (19) that when within 25 feet of the defendant's main track, the plaintiff could have seen the coming engine at a distance of 250 feet south of him, (20) and the engineer in charge of the engine could have seen the plaintiff on Wall street, if standing within 25 feet of the main track, when the engine was 250 feet south of him; (21) that the engineer was about 50 feet from the plaintiff, when he first saw him, (29) and then the left portion of the plaintiff's body was turned towards the engineer; (24) and the engine at that time was on or near the center of Wall street; (22) and the plaintiff then was from two to three feet of the defendant's main track, (25) and walking towards it, (35) upon the planking for teams, (30) with his left side turned towards the engineer; (26) and at that time there was nothing in the action of the plaintiff which indicated to the engineer that the plaintiff was about to stop until the engine passed, before trying to cross himself; (28) and when the engineer saw that the plaintiff was about to cross the track he did all in his power to stop the engine, and save the boy from injury; (27) and when the engineer first put forth any effort to save the plaintiff from injury he was just crossing the track; (33) that after the engineer attempted to arrest its progress the engine moved about 35 feet; (23) that when the plaintiff was struck by the engine he was from two to three feet south of the south side of the north side walk of Wall street; (31) that the defendant's employés were guilty of negligence or want of care which directly contributed to produce the injuries which the plaintiff sustained; (31 1/2) and such negligence or want of care consisted-- First, in not keeping a proper lookout to see that the track was clear; secondly, in running at a greater rate of speed than six miles an hour; thirdly, in not blowing the whistle to warn the plaintiff of his imminent danger; (32) that the plaintiff did not in any respect fail to exercise ordinary care, which directly contributed to produce the injuries which he sustained; (34) that the plaintiff had sustained $30,000 damages by means of the injuries which he has received; and the jury also returned the following general verdict, to-wit: “We, the jury, find for the plaintiff, and assess his damages at the sum of ($30,000) thirty thousand dollars.” Thereupon the defendant moved to set aside the verdict, and for a new trial, upon 10 specific grounds, unnecessary here to mention, which motion was overruled; and thereupon the trial court ordered judgment in favor of the plaintiff on the special verdict for the amount found by the jury. From the judgment entered thereon accordingly, with costs taxed at $620.99, the defendant brings this appeal.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

Fethers, Jeffris & Fifield, for respondent.

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

Pleasant street in Janesville runs south-westerly from what is known as the “lower bridge,” for three blocks, and then turns and runs directly west across the tracks of the defendant and the Chicago, Milwaukee & St. Paul Railway, and then continues in the same direction to the city limits. The place of such crossing is at the junction of Pleasant and Madison streets, the latter of which runs directly north and south. The defendant's railway track at that point runs about 35 degrees east of north, and continues in that direction until it crosses the river; and for that distance the track of the Chicago, Milwaukee & St. Paul Railway runs right along on the westerly side of it. The western terminus of Milwaukee street commences at the junction of Pleasant and Madison streets, and runs about 20 degrees north of east, and across what is known as the “upper bridge.” Immediately south of that street, and about half way from its western terminus to the bridge, is the Central school-building. Wall street in question is the next street northerly from Milwaukee, and runs parallel to it from the river, or rather the race, to the place where it crosses Marion street, then across the railway track mentioned, and then continues in the same direction, until it intersects Pleasant street, west of the railway. Such crossing of the railway tracks by Wall and Marion streets is the first crossing southerly from the passenger depots. The first crossing of the railway tracks northerly from those depots is by Academy street, running at right angles with Wall and Milwaukee streets. At that railway crossing the two companies were required by city ordinance to keep a flagman, to warn persons about to pass. The same is true of the Pleasant-Street crossing mentioned; but none was so required at the Marion and Wall street crossing. At that crossing the defendant had two or three side tracks on the easterly side of its main track; and the other company's main track was about eighteen feet westerly from the defendant's main track, and westerly from that it had two or three side tracks. November 18, 1887, the plaintiff resided with his father on Pleasant street, about half a mile west of where that street crosses the railway, and had for a long time. He was on that day 7 years, 3 months, and 14 days old, and had been in the habit of attending the Central school mentioned, since the spring before. His more direct route to that school was by way of the Pleasant-Street crossing. Another boy, nine years of age, by the name of Callaghan, lived near where the plaintiff did, and was at that time going to the same school, in the same room, and to the same teacher. They were at school together on the day named. In the afternoon of that day the boys, including the plaintiff, spoke pieces. About 3 o'clock, or a little after, the plaintiff, with the Callaghan boy, started from the school, and went to see his grandfather, who was at work near the river, and a short distance north of Milwaukee street, to get some money from him for having spoken the piece. From there the two boys started for home together, westerly along Wall street. There is evidence tending to prove that the two were on the southerly side of Wall street as they approached the railway crossing, and saw a St. Paul freight train up by the depot; that as they came to Marion street, or in that vicinity, they left the sidewalk on the southerly side of Wall street, and went north-westerly towards the other side of that street. Upon reaching about the middle of that street, and seeing the freight train approaching from the north on the main track of the St. Paul road, the Callaghan boy left the plaintiff, and ran westerly across the several tracks, passing about 15 feet ahead of the freight train. The plaintiff testified, in effect, that just before the Callaghan boy started to run across the tracks, he told the...