Hemmingway v. Chi., M. & St. P. Ry. Co.

• Decision Date: 11 January 1887
• Citation: 31 N.W. 268,67 Wis. 668
• Court: Wisconsin Supreme Court
• Parties: HEMMINGWAY, BY ANOTHER, HIS GUARDIAN, v. CHICAGO, M. & ST. P. RY. CO.

67 Wis. 668

31 N.W. 268

HEMMINGWAY, BY ANOTHER, HIS GUARDIAN,

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

January 11, 1887.

Appeal from circuit court, Rock county.

This action was brought to recover damages for personal injuries suffered by the plaintiff, alleged to have been caused by the negligence of the defendant company. A trial resulted in a verdict and judgment for $10,000 damages. Motions for a nonsuit and a new trial were denied. The defendant appeals from the judgment.

There is no controversy as to the material facts in the case, and they are summarized substantially alike in the briefs of the respective counsel. The summary in the brief of counsel for the defendant is a correct and sufficient statement of the facts material to the questions considered in the opinion. It is as follows:

“On the twentieth day of October, 1882, the plaintiff, Charles H. Hemmingway, being then nearly ten years and ten months of age, took passage at Hanover, in this state, upon a freight train of the defendant, for Janesville, a distance of about seven miles. He was unaccompanied by his father, mother, or any other person having him in charge. He took a seat in the caboose attached to the rear of said train, and remained therein until shortly before arriving at the depot at Janesville. The train upon which he was, No. 4, was due at Janesville at 2 P. M. At that station it met a mixed train, No. 11, going in the opposite direction towards Albany. The mixed train was one which arrived from Milton Junction at 1:45 P. M. That train, when it came in, drew up along-side the platform at the depot, discharged such passengers and baggage as were destined for Janesville, and then backed up east of the depot onto a side track, known as the ‘lumber track,’ and awaited the arrival of the train from the west upon which the plaintiff was a passenger. The usual custom of operating these trains under the time-card then in force, and which had been in force since April 9, 1882, was as follows: Train No. 4, upon its arrival in Janesville, did not stop at the depot in the first instance, but passed up the main track eastward far enough to clear the ‘lumber-track’ switch, and stopped with its caboose at a distance of about 283 feet from the depot and 198 feet from the east end of the depot platform, and along-side the ‘lumber track.’ The mixed train, standing upon the ‘lumber track,’ then passed out through the switch onto the main track, down opposite the depot and depot platform, received its west-bound passengers and baggage, and departed west at 2:10 P. M. Immediately after the departure of the mixed train, train No. 4 backed down the main track, so that its caboose would be opposite the depot and the platform, where it stopped and discharged such of its passengers as had not already alighted, and its baggage and local freight, if there were any, and afterwards drew up to the yard east of the depot, did its switching, and took its departure for Milton. This method of operating the trains continued until the adoption of a new time-card, changing the time of these trains, November 5, 1882. It was frequently the case that passengers destined for Janesville left the caboose while it was at a stand-still on the main track east of the depot adjoining the ‘lumber track.’

On the day of the accident, train No. 4, upon which the plaintiff was a passenger, stopped at the round-house and coal-shed, about 900 feet west of the depot, where the engine took water and coal. The train then pulled up on the main track, passed the depot and platform, to the point above referred to, opposite the ‘lumber track.’ Shortly after leaving the round-house the plaintiff left his seat, and went out onto the front platform of the caboose, reaching it just as the caboose was passing the west end of the depot. A man named Eddy, who was a passenger on the same train, had already preceded him, and was standing on the caboose platform as the plaintiff came out of the car. The plaintiff asked Eddy if he thought the train ‘would stop at the depot;’ the latter replied that he ‘guessed not,’ and thereupon passed down the steps of the caboose platform, and jumped off from the lower step to the depot platform, a distance of about four inches, and followed along with the train a few steps in an easterly direction. Immediately after Eddy had jumped from the train the plaintiff passed down onto the lower step of the caboose platform, and taking hold with his right hand of the front railing of the car, jumped to the depot platform. He followed with the train for a step or two, when he struck against Eddy, which caused him to turn and stagger, and he fell and rolled off the depot platform under the caboose, with his right arm across the north rail of the track, and the front wheels of the caboose passed over and crushed his arm, necessitating amputation between the wrist and elbow. During the time in which the train was running from the round-house to the depot, the two brakemen were on top at the brakes preparing to stop the train at the usual...