Hotchkiss v. Green Bay & W. R. Co.

• Decision Date: 29 April 1913
• Citation: 153 Wis. 340,141 N.W. 231
• Parties: HOTCHKISS v. GREEN BAY & W. R. CO.
• Court: Wisconsin Supreme Court

153 Wis. 340

141 N.W. 231

HOTCHKISS

v.GREEN BAY & W. R. CO.

Supreme Court of Wisconsin.

April 29, 1913.

Appeal from Circuit Court, Trempealeau County; E. C. Higbee, Judge.

Action by Frank A. Hotchkiss against the Green Bay & Western Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Action to recover damages for the death of John Wainorek, a child six years of age, who was run over by defendant's gravel train, under circumstances stated in the opinion. The jury found: (1) That there was a section of a board broken out of the gate of the fence on the south side of defendant's right of way at the point in question at the time of the accident; (2) that it had been broken out of the gate a sufficient length of time to have enabled the defendant, in the exercise of ordinary care, to have discovered and repaired the same before the time of the accident; (3) that John Wainorek got upon the defendant's track by reason of the broken board in the gate; (4) that he was not dead at the time he was struck by defendant's train; (5) that defendant's servants in the charge of the train were wanting in the exercise of ordinary care in the operation and management thereof; (6) that such want of ordinary care was a proximate cause of the death of John Wainorek; (7) that the deceased was wanting in the exercise of ordinary care which contributed to his death; (8) that his parents were wanting in the exercise of ordinary care which contributed to his death; and (9) damages in the sum of $500. From a judgment in favor of the defendant entered upon the verdict, the plaintiff appealed.John F. Kulig, of Independence, G. O. Linderman, of Osseo, and R. S. Cowie, of Whitehall, for appellant.

John C. Gaveney and Gaveney & Barlow, all of Arcadia, for respondent.

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

Counsel for plaintiff state in their brief that: “The sole question submitted to the court is, Was there any evidence to sustain the findings of the jury that either the plaintiff's intestate, John Wainorek, or his parents, were wanting in any ordinary care that contributed to the death of plaintiff's intestate?” This is no doubt an interesting question under the evidence in the case, but, before it can be reached by the court, the defendant's negligence must be established to be the proximate cause of the death of John Wainorek.

[1] For if there was no negligence on the part of the defendant, or if there was, but it cannot be said with reasonable certainty that such negligence was the proximate cause of the injury, then no liability follows. A careful perusal of all the testimony in the case satisfies us that it does not support the third and fifth findings of the jury.

The parents of deceased lived about 20 rods south of defendant's railroad track, which at the point in question runs substantially east and west. From the house to the railroad track there is a fairly well beaten path leading to a gate on the south side of the track and a corresponding gate on the north side thereof. These two gates give access to a pasture lying north of the railroad. The path stops at the north gate. The evidence does not disclose who occupied or used the pasture. At about 4 o'clock in the afternoon of July 31, 1910, the deceased came to the field of a neighbor, Mr. Ressler, who was cutting grain about 40 rods south of the railroad track, and inquired for Mr. Ressler's boys, stating that he wanted to play with them. He was told that they had to work, and Mr. Ressler next saw him in his field up towards the railroad track and did not see him again until after the accident, which occurred about 25 minutes later. Neither the father nor mother of the deceased gave any testimony as to the whereabouts of the boy on the afternoon of his death. The defendant was running a gravel train west from Whitehall to Arcadia at a rate of about 20 miles an hour. It consisted of about 17 loaded cars. The engine was headed east, pulling the cars behind it. On the front of the tender were two brakemen acting as lookouts. It was slightly downgrade where the accident occurred. About 800 or 1,000 feet east therefrom was a deep cut and a curve in the track extending about 500 feet west from the mouth of the cut. This train with the same crew had been hauling gravel over the track for two or three weeks previous to the time of the accident. The two brakemen and the roadmaster, Mr. White, who was in the engine looking ahead, noticed an object upon the track when about 500 feet away from it as soon as it became visible from the curve. When the train crew first discovered the object upon the track, the brakeman and engineer thought it was a chunk of sod that had fallen from previous loads hauled over the road. The roadmaster, Mr. White, said it looked to him as though it was a bird, crow, or some object of that kind. He could not distinguish it as the body of a human being. The train was about 250 feet away from the boy before any of the members of the crew were able to recognize the object as a human being. John Goman, one of the brakemen, who acted as a lookout, first saw it was a boy and he said the train was then about 200 to 250 feet away. As soon as he discovered it was a child he gave the engineer a signal to stop. The engineer threw the steam off the cylinder, used the emergency...