Johnson v. The Chicago & Northwestern Railway Company
| Decision Date | 27 May 1880 |
| Citation | 5 N.W. 886,49 Wis. 529 |
| Parties | JOHNSON, Administrator, v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY |
| Court | Wisconsin Supreme Court |
Argued May 13, 1880
APPEAL from the Circuit Court for Calumet County.
Action for an injury to plaintiff's intestate, which resulted in his death, and which is alleged to have been caused by defendant's negligence. After plaintiff's evidence was in, the court, on defendant's motion, ordered a nonsuit. Plaintiff appealed from the judgment.
Judgment reversed and new trial ordered.
Submitted for the appellant on the brief of Tracy & Bailey.
Brief for the respondent by F. J. Lamb, and oral argument by Mr Lamb and Wm. F. Vilas.
The nonsuit can only be sustained upon the grounds first, that the jury would not have been warranted in finding, upon the evidence, negligence upon the part of the servants of the defendant; or second, that the evidence did show negligence on the part of the boy, or his parents, which contributed to the injury. A glance at the testimony will show that the nonsuit was wrong upon either ground. The boy was about six years old, and, as we understand the testimony, was killed at a place where the railroad track crossed a public street in Fort Howard. The highway was one much traveled by little children, who crossed the track at that place daily on their way to school. The boy himself attended school, but, as his parents lived north of the crossing, he had no occasion to go along that street in returning from or going to school. But it appears that the children of about fifty families, living on the south side of what is spoken of in the testimony as the "slough bridge," have to go over this railroad crossing in order to reach the school-house on the west side of the track; and it is very obvious, from all of the surroundings, that the crossing was one which required great vigilance and care on the part of the servants of the company to prevent injuries to persons in the street while running its engines and cars across the street at that place.
The jury might reasonably have found that the engineer did not exercise the prudence and care required under the circumstances; that he was guilty of negligence in not looking out of the window on the side of the engine to see whether there was any person in the street at the crossing who was in danger of being injured by collision. A proper regard for the lives and safety of persons on the street, at that place, would seem to impose at least that degree of care and vigilance upon the servants of the company. If the engineer had even looked out of his window, as he approached the crossing, possibly he might have seen the little boy playing in the highway, and have stopped his engine in time to have avoided the accident. At all events, the question should have been submitted to the jury to determine whether, under the circumstances, the servants of the defendant exercised reasonable vigilance and care to avoid inflicting injury upon persons in the street at that crossing.
The evidence was not so clear exculpating the defendant as to justify the court in withdrawing the case from the consideration of the jury. The learned c...
To continue reading
Request your trial