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

Decision Date12 June 1917
CourtWisconsin Supreme Court
PartiesJACOBY v. CHICAGO, M. & ST. P. RY. CO.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

On petition for rehearing. Rehearing denied, and mandate amended.

For former opinion, see 161 N. W. 751.

Siebecker, Kerwin, and Eschweiler, JJ., dissenting.C. H. Van Alstine and H. J. Killilea, both of Milwaukee, for appellant.

William F. Schanen, of Port Washington (James D. Shaw, of Milwaukee, of counsel), for respondent.

WINSLOW, C. J.

Respondent moves for a rehearing, and urges that if, under the testimony in the record, the court is convinced that track No. 1 was used for railway rather than for industrial purposes, the court determine that fact now, and not send the case back for another trial. In support of this position respondent says that the proof concerning the use of this track is clear and conclusive; that no more complete evidence could be produced upon another trial; hence that another trial would be a useless expenditure of time and money. This contention is evidently advisedly made by counsel, who are fully cognizant of its importance and of its effects, and we have concluded to act upon it. Certainly it is no kindness to either party to order a new trial when all the facts are already before the court as fully as they could be brought out on another trial.

It was said in the former opinion that:

“To sustain a judgment for plaintiff in this case it must appear that defendant, under section 1810, was required to place a fence between the east-bound main track and switch track No. 1, just south of it.”

This was based upon our conclusion that there was no evidence on which it could be found that Jacoby entered on the danger zone at any particular place except the point where he climbed over the bumpers and between the stock cars standing on track No. 1. It was stated in this connection that respondent did not contend that the absence of a fence anywhere else could be said to have caused Jacoby's death, and this latter statement is challenged by respondent's counsel on this motion. We do not, however, have occasion to consider this challenge now, as we are still convinced that in order to sustain plaintiff's claim it must appear that a fence was required by section 1810 between the east-bound main track and track No. 1.

The uncontradicted evidence shows that track No. 1 was parallel with and next to the main track, and was used as a track on which...

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7 cases
  • Scory v. La Fave
    • United States
    • Wisconsin Supreme Court
    • May 7, 1934
    ...to some such relationship. Knauer v. Schlitz Brewing Co., supra; Jacoby v. C. M. & St. P. R. Co., 165 Wis. 610, 622, 161 N. W. 751, 164 N. W. 88;Conrad v. Springfield R. Co., 240 Ill. 12, 17, 88 N. E. 180, 182, 130 Am. St. Rep. 251;Shoninger Co. v. Mann, 219 Ill. 242, 76 N. E. 354, 3 L. R. ......
  • Affett v. Milwaukee & Suburban Transport Corp.
    • United States
    • Wisconsin Supreme Court
    • November 29, 1960
    ...v. National Distilling Co., 1906, 127 Wis. 306, 106 N.W. 831; Jacoby v. Chicago, M. & St. P. R. Co., 1917, 165 Wis. 610, 161 N.W. 751, 164 N.W. 88. The rationale of these cases is that such comment by the trial court invades the province of the jury, which under our system of jurisprudence ......
  • Watson v. Riley
    • United States
    • Nebraska Supreme Court
    • September 4, 1917
  • Crecelius v. Chicago, M. & St. P. Ry. Co.
    • United States
    • Missouri Supreme Court
    • May 17, 1918
    ...C. C. A. 228; Chicago, etc., v. Steele, 183 Ind. 444, 108 N. E. 4; Jacoby v. Chicago, M. & St. P. By. Co., 165 Wis. 610, 161 N. W. 751, 164 N. W. 88. A comparison of the facts present in the Pedersen Case, and the Seale Case, both supra, with the facts held in judgment in the Welsh Case, an......
  • Request a trial to view additional results

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