Johnson v. Lake Superior Terminal & Transfer Ry. Co.

• Decision Date: 26 September 1893
• Parties: JOHNSON v. LAKE SUPERIOR TERMINAL & TRANSFER RY. CO.
• Court: Wisconsin Supreme Court

86 Wis. 64

56 N.W. 161

JOHNSON

v.LAKE SUPERIOR TERMINAL & TRANSFER RY. CO.

Supreme Court of Wisconsin.

Sept. 26, 1893.

Appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Action by Herman Johnson against the Lake Superior Terminal & Transfer Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

The plaintiff brought his action against the defendant, a railroad corporation engaged in a general switching and transfer business at West Superior, to recover damages for injuries caused to the plaintiff by the alleged negligence of the defendant while the plaintiff was walking on its track, rendering the amputation of the plaintiff's left foot necessary; the specific charge of negligence being that while the plaintiff, as licensee, was walking on the track, an engine of the defendant backed down on him without giving him any warning, and that the persons in charge of the engine failed to keep a lookout for persons on the track, though said track was and had been used for a long time by pedestrians in going to and returning from various points, and with the assent of the defendant. The jury found a special verdict to the effect that the people, for a considerable length of time prior to the accident, had been accustomed to travel on the defendant's tracks, between the rails, at the point in question, to the knowledge and with the acquiescence of the defendant in such use of its track by the public; that there was a want of ordinary care on the part of the defendant's servants in charge of the engine at the time the plaintiff was injured, which was the proximate cause of the injury; and that there was no want of ordinary care on the part of the plaintiff, contributing thereto,--and assessed the plaintiff's damages at $6,000, upon which he had judgment, from which the defendant appealed. The principal contention of the defendant is that the circuit court erred in not directing the jury, as requested, to find that the proximate cause of the accident was the negligence of the plaintiff, and that the court erred in not granting a new trial. The evidence of negligence on the part of the defendant, in not keeping a lookout, and in not ringing a bell or signaling the approach of the engine, was such as to clearly require the submission of that question to the jury, and so, too, as to the question of license and acquiescence by the defendant in the passing and repassing of the public over and along the switch tracks in question, and showed that various parties, mainly laborers and members of their families, were accustomed to come upon these tracks at different points, and walk on and along the tracks to various other points,--so much so that upon the track near where the plaintiff was injured there was quite a path worn between the rails by pedestrians, and that the ground on either side was incumbered so that it was inconvenient to walk outside of the track in very many places. The principal track extended northerly from Second street, along Tower Bay slip, across North First street, to the point where the plaintiff was injured, a distance of 1,050 feet, and from thence north to the smelting works, a further distance of more than 1,100 feet, and the track was open to full view from 150 feet south of where the injury occurred to the north end of it, and was without material grade, though there were a few buildings along the track in the neighborhood of the point where the injury occurred. The plaintiff was a common laborer, familiar with the ground and location of the tracks, and familiar with the manner in which the premises, which were the private property of the defendant, were used. On the morning in question he went down Tower Bay slip, along the track, to a point where a boat was unloading, in quest of employment, but failed to get any. Then he went back upon the track, and was walking south on it towards the south end of the Adamant Works, when he met the defendant's train, consisting of a locomotive and tender and about six freight cars, passing on its way north, and he stepped off the track, and it passed him. Shortly after he stepped back upon the track, when he looked up towards the north, in the direction of the engine, and saw that it was about 300 feet from him, and apparently still going north, and thought it was going up to the smelting works, which is a considerable distance further to the north, or at the end of the track. He stepped back upon the track, and continued his journey towards the south. Near the point where he stood there was a switch and a side track 480 feet long. The plaintiff testified, in substance, that when he started to return south upon the track the train was about 300 feet north of him, and he thought it was still going further north; that he is not sure whether it was on the main switch track or side track; that the locomotive was at the south end, pushing it north, with its head in that direction, and its rear end towards him; that he looked to see if the engine had stopped when he stepped on the track to go south, and walked right down the middle of the track about 75 or 100 feet to where there was a small pile of lumber, when he looked around, and saw the train was close upon him; that he then tried to jump off the track, but before he got his left foot over the wheels struck him, and cut his foot off; that he was going south, the same way the train was, with his back towards it; that he was expecting the train might come back, so he was listening to hear whether the bell rung or not, and that is the reason he knows it did not ring; that the switch engine had a tank on the back of it, and a footboard or place to stand, and a railing for men to take hold of. The engineer told him when the train stopped, about 142 feet south of where he was injured, that he did not see him. The switchman having charge of the crew testified that he was standing on the footboard between the engine and the cars at the time, and did not see the plaintiff; that the engineer could not see a man on the track back of him, on account of the tank, the top of which is 7 or 8 feet from the ground, unless he was 25 feet away; that the train was not going more than three or four miles an hour at the time of the accident. Another of the crew testified that he did not see the plaintiff before he was hurt. This witness did not know whether the bell was rung or not, but the fireman testified that he rung the bell. There was nothing to obstruct the view from a point 140 feet south of where the plaintiff was injured to the north end of the tracks. No one saw the plaintiff until after he was hurt, and there was no...