Mason v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 11 December 1894
• Parties: MASON v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: Wisconsin Supreme Court

89 Wis. 151

61 N.W. 300

MASON

v.CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Wisconsin.

Dec. 11, 1894.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by Artie Mason, an infant, by guardian, against the Chicago, St. Paul, Milwaukee & Omaha Railway Company, for personal injuries caused by defendant's negligence. From a judgment of nonsuit, plaintiff appeals. Reversed.

The defendant's railroad runs in a general easterly and westerly direction through the outskirts of the city of Augusta. The passenger and freight depots are on opposite sides of the track, near the west end of the yard, and from thence the yard extends easterly along the main track for a distance of nearly a quarter of a mile. There are two switch tracks parallel with the main track, and one on each side thereof through the whole yard. There was evidence tending to show that, at a point near the east end of the yard, there was a well-beaten footpath across the north switch track and the main track, which had been for years frequently and continuously traveled by grown people and children. There were a number of inhabited houses on the north side of the track, and a number on the south side. There was evidence that the inhabitants of these houses used the path in going to and from each other's houses, and that people not living in the immediate vicinity also used it frequently, and that children used it in going to and from school. There was but one street crossing through the body of the yard, and that was about 700 feet west of the path, near the passenger depot. The plaintiff was at the time of the accident a child three years and nine months of age, and lived with his parents in a house north of the tracks, and about 240 feet from the path crossing. On the day of the accident (June 6, 1892), the father, who was a laboring man, was away from home; the mother was doing washing for others at home, assisted by her eldest daughter, a girl 16 years of age. There were four other children at home that day, including the plaintiff,--two older than the plaintiff, and one younger. They were playing about the house, and, shortly before the accident, they went into the sitting room to play marbles, the oldest child present being a girl 12 years old. The mother and oldest daughter kept on with their work in the kitchen. A door from the sitting room opens outdoors. The mother saw no more of the plaintiff until after the accident. The inference is strong from the evidence that he went outdoors through the sitting-room door, and walked down towards the path across the tracks. He was seen just before the accident by Mrs. Larson just in front of her house, which stood east of the Mason house, and nearer the path crossing. Just after she saw him, a freight train came into the yard from the west, and switched some cars onto the north switch track. These cars came down towards the east, struck some cars which were standing just west of the path, and pushed one of these cars just across the path. Immediately after this, Mrs. Larson was called by a little boy about four years old to come quick, and she went down to the track, and found the plaintiff lying under a freight car, with his arm cut off. She got him out from under the car, and he was taken home....