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

• Decision Date: 12 December 1882
• Parties: JOHNSON, ADM'R, ETC., v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

56 Wis. 274

14 N.W. 181

JOHNSON, ADM'R, ETC.,

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

Supreme Court of Wisconsin.

Filed December 12, 1882.

Appeal from circuit court, Calumet county.

About 3.30 o'clock P. M. of April 2, 1878, Olaf Johnson, a lad six years and nine months of age, was run over and killed by a switch-engine of the defendant, on its track at or near the bridge on the southern crossing of the same in Fort Howard. It appears from the undisputed evidence that the railroad at the point in question runs in a northerly and southerly direction, and crosses the street at the westerly end of a bridge in the same, running easterly over a slough. The bridge was 25 to 28 feet wide. There was a switch just 80 feet northerly from the north edge of the bridge, to a side track on the westerly side of the defendant's main track, and leading from it to the Green Bay & Minnesota Railroad. Just before the injury occurred, the engine in question, with the front of it northward and the rear of it southward, hitched onto about 20 cars at the front of the engine and started from the defendant's yard, about a mile north of this bridge, and backed the engine down, pulling the 20 cars after it for the purpose of transferring them to the Green Bay & Minnesota side track by means of the switch in question. When near the switch, the engine was uncoupled from the 20 cars and they were left upon the main track, while the engine backed down south of the switch, when that was turned, and then the engine went forward towards the north on the side track and hitched onto three box cars standing upon that track, then backed down southward onto the main track, when the switch was again turned and the three box cars were pushed northward on the main track until they came to where the 20 cars were standing, to which they were coupled, and then the engine backed and pulled the whole train southward until the rear or northern end of the 20 cars passed south of the switch, and that brought the engine about 60 feet south of the street crossing. The engine was a switch-engine, and had no tender on wheels. There was a pair of wheels in front and a foot-board for men to ride on and do their work, and another foot-board of the same kind in the rear of the engine for men to ride on and do their work while switching cars from one track to another. These foot-boards were each about one foot high from the ground, and the top of the tank six or eight feet high from the ground. Olaf lived with his father, about 300 feet west of the crossing. Before any portion of the train had passed as far south as the street, Olaf and his little school-fellow, Henry Bitters, had come from their school, a few blocks west of the track, and passed along the street by where his father was sawing wood, west of the track and in the block north of where he lived, and continued eastward to the railroad, and then got onto the iron step of one of the box cars in question. These little boys were driven off from the box cars by the switchman. They then passed eastward from the train down under the bridge on the north side of it, and southerly through under the bridge to the south side of it, where they again came up onto the track and got onto the rear foot-board of the engine, either while it was standing 60 feet south of the bridge or just after it had started to push the train northward. The engineer and fireman, who were on the engine at the time, both testified, and it is undisputed, that the height of the tank was such that by looking over it from their standing-place on the engine they could not see the track until it got to a distance of 30 feet from the rear end, and that by looking out of the window on either side the center of the track could not be seen until it got to a distance of 12 to 15 feet from the rear end. They both testified, in effect, that they did not know that the boys were on the rear foot-board of the engine while it was standing south of the crossing, nor after it started back. The whole train being thus standing upon the track, with the northward end of the 20 cars south of the switch, and the engine about 60 feet south of the crossing, was started northward, with the two boys riding upon the rear foot-board of the engine, behind the tank. The switch being turned onto the side track, the 20 cars were pushed up northward onto that, until about a car and a half of the box cars next to the engine were on the side track north of the switch, and a car and a half or a car of the box cars and the engine on the main track south of the switch, when the whole train was stopped. Just before it came to a dead stop the little boys jumped off the rear foot-board where they were riding and went to playing in the sand between the rails of the track. The coupling-pin between the three box cars and the 20 cars was pulled before the train came to a full stop, so that as soon as the engine and three box cars came to a full stop they became separated from the 20 cars, which remained upon the side track. The bell continued to ring during all the time. The engine and three box cars were then started southward to get south of the switch onto the main track, but had moved only about 15 or 20 feet, or a little more, when the engineer heard an alarm from a lady and the fireman at the same time; and thereupon he stopped the engine as soon as he could do so, which he thought was within a space of about eight feet. Upon stopping the engine Olaf's body was found lying dead on the track, forward of the forward drive-wheel on the left-hand side of the engine.

The above facts are not disputed. At the close of the trial the plaintiff was nonsuited, and from the judgment entered thereon this appeal is brought.

Tracy & Bailey, for appellant, Henry Johnson.

W. F. Vilas and F. J. Lamb, for respondent, Chicago & Northwestern Railway Company.

CASSODAY, J.

This case was here upon a former appeal from a judgment of nonsuit. 49 Wis. 529.^a1 The question of the plaintiff's contributory negligence was involved upon that appeal, as it is upon this. “It was for the jury,” as there said, “to say whether the parent or this child--regard being had to his age and intelligence--used that degree of care required under the circumstances.” The question of contributory negligence upon the part of a child of such tender years as Olaf was somewhat considered in Townly v. Railway, 53 Wis. 634-637; [S. C. 11 N. W. REP. 55.] It is there held, in effect, that such child cannot be adjudged guilty of contributory negligence, as a matter of law, unless the child is so young as to impute negligence to the parent for allowing it to be upon the track at all. Beyond question there is abundant authority for holding that it is contributory negligence for a parent to allow a child of very tender years to be about railroad trains or upon railroad tracks. Fitzgerald v. Ry. 13 N. W. REP. (Minn.) 168; Conley v. Ry. 2 Amer. & Eng. R. R. Cases, (Pa.) 4, and note; Smith v. Ry. Id. 12, and...