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

• Decision Date: 03 November 1885
• Citation: 64 Wis. 425,25 N.W. 223
• Court: Wisconsin Supreme Court
• Parties: JOHNSON, ADM'R, ETC., v. CHICAGO & N. W. R. CO.

64 Wis. 425

25 N.W. 223

JOHNSON, ADM'R, ETC.,

v.CHICAGO & N. W. R. CO.

Supreme Court of Wisconsin.

Filed November 3, 1885.

Appeal from circuit court, Winnebago county.

This action is for damages by reason of the death of the intestate, the plaintiff's son, a lad of nearly seven years, who was run over and killed by a switch-engine in a street crossing in Fort Howard. On the first trial the plaintiff was nonsuited and the judgment was reversed on appeal. 49 Wis. 529, and 5 N. W. Rep. 886. The same occurred on the second trial, and the facts are fully stated in 56 Wis. 274, and 14 N. W. Rep. 181. On the last trial, the jury returned a special verdict to the effect (1) that the defendant or its employes were guilty of carelessness which caused the death of the intestate; (2) that such negligence was by the defendant not having a flagman or watchman; (3) that the deceased got upon the rear foot-board of the locomotive and rode there to the place where the accident occurred without the knowledge of any employe of the defendant of his being there; (4) that the deceased and Henry Bitters did not jump from the rear foot-board of the locomotive after the train commenced to move backward, and while in motion, immediately preceding the accident; (5) that the deceased met his death from attempting to cross the track before the moving locomotive; (6) that his presence at the rear of the locomotive was unknown to either the engineer or fireman before the accident; (7) that either the engineer or fireman, in the exercise of ordinary care, could have seen the deceased from their posts of duty, so as to have known of his danger before the accident; (8) that the deceased was not guilty of any want of ordinary care which directly contributed to his death; (9) that the deceased's father was not guilty of contributory negligence; (10) that the defendant was guilty of negligence in not having some one stationed at the crossing to look; (11) that the pecuniary loss which the father of the deceased boy had sustained by reason of his death was $2,500. From the judgment entered upon the verdict the defendant brings this appeal.John J. Tracy, for respondent, Henry Johnson, adm'r, etc.

Jenkins Winkler & Smith, for the Chicago & N. W. R. Co.

CASSODAY, J.

At the place of the injury the defendant's railway track runs in a north-easterly and south-westerly direction. Second avenue runs directly south from the track, and there is a bridge in it near the track. From the north end of Second avenue, Third avenue runs in a north-easterly direction, and Fifth street in a north-westerly direction. Some 72 or 80 feet northeasterly from the middle of the highway there is a switch. On the afternoon in question the engine went north-easterly on the main track; and then the forward end of it was attached to 20 freight cars, and then backed south-westerly towards the crossing in question, drawing the 20 cars after it until near the switch, when the engine was uncoupled from the 20 cars, leaving them upon the main track, and the engine was moved south-westerly of the switch, and then back onto the side track, and the front end thereof coupled onto “two or three box cars,” and with them it backed down onto the main track, and then, on the switch being turned, pushed the “two or three box cars” northeasterly on the main track until they reached the 20 freight cars, where they were coupled onto them, and then the whole train was started south-westerly until the last freight car passed the switch, when it stopped. About that time the deceased and his playmate, Bitters, were seen hanging onto the side of one of the box cars, and were driven off, and they went down under the bridge, but when the switch was turned and the train being pushed back onto the side track, the boys came up from under the bridge and got onto the footboard at the hind end of the tender attached to the engine, and continued to ride there until the 20 freight cars were pushed back far enough on the side track to enable trains to pass in safety on the main track, when it stopped. The 20 freight cars were then detached from the box-cars.

There is evidence tending to show that while the engine was still moving, and just before it stopped, the deceased and Bitters dropped off the foot-board, onto the ground between the rails of the...