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

• Decision Date: 14 April 1896
• Citation: 93 Wis. 79,67 N.W. 21
• Court: Wisconsin Supreme Court
• Parties: LEITCH v. CHICAGO & N. W. RY. CO.

93 Wis. 79

67 N.W. 21

LEITCH

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

Supreme Court of Wisconsin.

April 14, 1896.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by M. L. Leitch against the Chicago & Northwestern Railway Company to recover for personal injuries resulting from the alleged negligence of defendant. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action for personal injury at a highway crossing of the defendant's railway track. The plaintiff was approaching the track from the westward. The conformation of the ground is such that her view to the left was obstructed, until she got very close to the railway track, by reason of a high bank within the right of way, most of which consists of a natural hill, through the foot of which the railway runs, making a small cut. Her horses are claimed to have been frightened by an approaching train while she was crossing the track. They ran away, upset her buggy, and she was injured. Two charges of negligence are contained in the complaint. One is that the signals required by statute were not given; the other, that the highway crossing was not properly restored and maintained in proper condition. Upon this subject the complaint alleges: “That said crossing was, nevertheless, at all times carelessly and negligently maintained by said defendant in violation of its said duty, in that upon and along the southeasterly side of said railroad track, for several hundred yards upon either side of said crossing, said defendant has at all times needlessly and unnecessarily maintained a high embankment, so constructed along and within the right of way of said defendant that a traveler upon said public highway approaching said crossing from the south could not see a train approaching said crossing upon said railroad track from either direction, until nearly or quite upon said crossing that said crossing, with said dangerous embankment, was thus negligently maintained by said defendant upon the 10th day of March, 1894, and for a long time prior and subsequent thereto; and that by reason of said embankment so wrongfully, carelessly, and negligently maintained by said defendant, the usefulness of said highway was at said time and is unnecessarily and materially impaired, and its use by the public greatly interfered with, and rendered much less safe and convenient for travel than before the construction of said railroad over the same; that said embankment is, and always has been, wholly unnecessary, and subserves no useful purpose whatever, and that the same could at any time have been easily removed by said defendant in such manner as to give persons approaching said railroad crossing upon said public highway a clear and unobstructed view of said railroad track for a long distance upon each side of said crossing, thereby greatly reducing the danger of frightening horses driven upon said highway near said track, as well as the danger of collision while attempting to cross the same; but that by reason of said embankment said crossing was, upon said 10th day of March, 1894, and for a long time prior and subsequently thereto, extremely dangerous to persons or teams traveling upon or near the same, for the reason that said embankment obstructed a traveler's view of trains approaching said crossing.” At the trial, evidence was given of a high bank within the right of way and to the left of the highway, which prevents a traveler from seeing a train coming from that direction. This hill is entirely outside of the limits of the highway. Prof. Whitney, who gave evidence on that subject, was also asked: “Q. What is the surface of the top of the bank which you have described north of the crossing, as to its being a natural surface or otherwise? (Objected to by defendant. Overruled. Exception by de...