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

• Decision Date: 12 December 1883
• Citation: 17 N.W. 632,59 Wis. 139
• Parties: HOGAN, AN INFANT, BY GUARDIAN AD LITEM, v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

59 Wis. 139

17 N.W. 632

HOGAN, AN INFANT, BY GUARDIAN AD LITEM,

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

Supreme Court of Wisconsin.

Filed December 12, 1883.

Appeal from county court, Milwaukee county.

The plaintiff, John Hogan, an infant under seven years of age, brought this action, by his guardian ad litem, to recover damages for personal injuries caused by the alleged negligence of the servants of defendant company. After alleging the appointment of a guardian ad litem for plaintiff, and the incorporation of the defendant, the complaint proceeds as follows:

“That at the time hereinafter mentioned there was a railroad side track extending from the main tracks of said defendant, in the Fourth ward of the city of Milwaukee, over private property, in an easterly direction to the south side of a water-course running east and west, known as Kneeland canal; that said side track was used by the defendant, but that the ground over which it lay was not in the exclusive possession of the defendant nor devoted to its exclusive use, but the same was habitually and largely used for travel by teams and pedestrians; and, especially at a point nearest to said water-course, it was constantly and habitually used for passage and travel by teams and persons on foot, and with a view and for the purpose of facilitating such passage and travel the space next to and between the rails of said track was planked and so arranged as to make the crossing of the same convenient and easy, and to indicate by its appearance that it was a proper place for crossing and travel, and that such place was near a public street, and open and free of access to everybody, all of which said defendant well knew.

That on the twenty-second day of September, 1881, a train of freight cars of said defendant stood on said side track, immediately west of said place of crossing and passage; that there was no locomotive engine or other motive power attached thereto, and the same stood there a long time, to-wit, several hours, without moving, and that said defendant had been in the habit of keeping detached cars standing in said place on said side track for long periods of time without moving the same; that on said twenty-second day of September, 1881, said plaintiff, being then less than six years of age, was on said side track immediately to the east of said train of cars, standing thereon, as aforesaid, and on the part of said track which was a common and open passage-way and crossing, as aforesaid; that he was there lawfully, and without fault or negligence on his part or the part of his parents; and that said defendant then and there suddenly, and without any notice or signal thereof being given, with gross carelessness and negligence, and recklessly, by means of a locomotive applied at the western end of said train, at a great distance from the east end thereof, and which could not be seen from the place where said plaintiff was, started and propelled said train eastwardly on said track, by means whereof said plaintiff, without any fault or negligence on his part, was knocked down by the most easterly of said cars, thrown upon the track where the wheels of said car passed over his left arm and crushed the same so that it had to be amputated.

That it was the duty of said defendant, in the exercise of ordinary care, before starting said cars and pushing the same eastwardly over the said common and habitual passage-way and crossing, to give due and proper notice of its intention so to do, so as to warn away persons who might be there, but that said defendant wholly failed and neglected so to do.”

The answer is (1) a general denial; (2) contributory negligence of the plaintiff; (3) like negligence of his parents. A trial of the issues by a jury resulted in a special verdict, in the form of questions and answers, as follows: “(1) Does ordinary care and prudence require that a reasonable notice, signal, or warning should be given before moving a train backwards upon the place where the plaintiff boy stood, in the manner in which the train by which the boy was injured in this case was moved back? Answer. Yes. (2) Was such a notice given in this case? A. No. (3) If not, was the omission to give the same negligence on the part of the defendant or its employes? A. Yes. (4) Was such negligence the proximate cause of the plaintiff's injury? A. Yes. (5) Was there any negligence on the part of the plaintiff contributing to the injury, considering the age and degree of intelligence of the plaintiff, at the time of the injury? A. No. (6) Was the engine bell rung while the engine was backing in on the side track, and while the couplings were being made? A. Yes. (7) Did the defendant make the coupling, at the time of the accident, with care? A. No. (8) Was the work upon this side track, on the day in question, done in the same manner in which it had been done for a long time prior to the accident? A. Yes. (9) Was the engine whistle sounded? If yes, where was the engine when the whistle blew? A. Engine whistle sounded on the main track, going west to the switch. (10) How far easterly did the rear car move when the second coupling was made? A. From 3 to 10 feet. (11) Was Caroline Hogan guilty of negligence in her care of John Hogan on the day of the accident and prior to the accident? A. No. (12) Was Mrs. Hogan guilty of negligence in her care of John Hogan? A. No. (13) Did the accident occur at a place where the men in charge of the train would naturally expect a little child to be upon the track? A. No. (14) Ought the train-men, in the exercise of ordinary prudence, to have anticipated, as the probable result of their act in coupling the cars, that a child would be injured? A. No. (15) Do you find for the plaintiff or for the defendant? And, if you find for the plaintiff, at what sum do you assess the damages? A. We find for the plaintiff, and assess the damages at twenty-two hundred dollars.” Each party moved for judgment on the verdict. The motion of the plaintiff was denied, and that on behalf of the defendant was granted, and judgment for the defendant was entered accordingly. The plaintiff appeals from the order denying his motion, and from the judgment against him, pursuant to Laws 1883, c. 49.Jenkins, Winkler & Smith, for appellant, John Hogan, by guardian ad litem.

John W. Cary and D. S. Wegg, for respondent, the Chicago, M. & St. P. Ry. Co.

LYON, J.

The record contains no bill of exceptions. The motion on behalf of the defendant company for judgment was based upon the minutes of the judge as well as upon the verdict. It is claimed for defendant that, in the absence of a bill of exceptions preserving the testimony, it must be presumed that the undisputed testimony, independently of the question submitted to the jury, establishes the right of the defendant to a judgment. This proposition is based upon the familiar rule that error is never to be presumed, but to be available must always be made to appear affirmatively. The argument of the learned counsel for the plaintiff against this proposition is, in substance, that resort can only be had to the minutes of the court--that is, to what transpired on the trial--in motions for new trials made at the trial terms, (Rev. St. p. 764, § 2878,) and hence that a judgment cannot properly be rendered upon what appears only in the minutes of the court, and especially when the judgment contravenes the verdict of the jury. The question is an interesting one, and may become...