McDermott v. Chi., M. & St. P. Ry. Co.

• Decision Date: 26 September 1895
• Citation: 91 Wis. 38,64 N.W. 430
• Court: Wisconsin Supreme Court
• Parties: MCDERMOTT v. CHICAGO, M. & ST. P. RY. CO.

91 Wis. 38

64 N.W. 430

MCDERMOTT

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

Supreme Court of Wisconsin.

Sept. 26, 1895.

Appeal from circuit court, La Fayette county; George Clementson, Judge.

Action by James McDermott against the Chicago, Milwaukee & St. Paul Railway Company to recover for personal injuries to plaintiff caused by defendant's maintaining a defective crossing in the town of Mineral Point. There was judgment for plaintiff, and defendant appeals. Affirmed.

Personal injuries. The testimony is not preserved by a bill of exceptions. At the close of the testimony the following statement of facts was made by the circuit judge to the jury: “In the year 1830, Bracken, Irvine, and Ansley, proprietors of the land, platted Irvine's addition to the then village of Mineral Point. One of the streets upon said plat was Commerce street, which ran north and south, and apparently was sixty-six (66) feet in width. In the year 1853, the trustees of the village of Mineral Point, at the suggestion of the Mineral Point Railroad Company, which was constructing a railroad from Warren, on the Illinois Central Railroad, to Mineral Point, vacated all of Commerce street south of Second street, and also other streets and alleys south of Second street, and a number of lots lying south of said point, and set over all of said vacated streets and alleys for railroad and depot purposes for the use of said railroad company. This railroad was built into Mineral Point in the year 1857. The depot building of said railroad was built upon said vacated ground, east of Commerce street, at a place about 200 feet south of Second street. On the east of the depot building was the passenger track, and on the west of it the freight track, the western rail of which was on the east line of what had been Commerce street. South of the passenger depot, and in line with it, was the freight depot, and south of the freight depot about 200 feet, and partly in what had been Commerce street, were located the stock yards of the railroad company. The railroad track to the roundhouse crossed what had been Commerce street diagonally, north of the passenger depot. In 1887, the Chicago, Milwaukee & St. Paul Railway Company, which, in 1880, had succeeded to all the rights and franchises of the Mineral Point Railroad Company, put in a spur track, which started from the freight track at a point north of the passenger depot and crossed Commerce street, as originally laid out, diagonally, opposite the passenger and freight depots. This track was built for the accommodation of James' coal shed, which was erected about 100 feet southwest of the freight depot, on the land of the railway company, under a lease from said company, and for the accommodation of J. D. Martin & Co., who had a lumber yard on the depot grounds of the railway company west of the line of Commerce street and south of said depot buildings. J. D. Martin & Co. had their lumber yard upon said grounds by permission of the railway company, but they had no written lease, and paid no rent. All of the lumber sold at said lumber yard, and all of the coal sold at said coal shed, were shipped in over said railroad. The most of those who purchased lumber at said lumber yard traveled to and from said yard over what had been Commerce street, and where said spur track crossed it, and the same was true, also, as to wagons going and coming from said coal shed. Nearly all of those who carried freight to or brought freight from said railroad depot and grounds also crossed said spur track at the place named. Besides those, for more than 20 years before the time when the plaintiff was injured, there was considerable travel over the line of Commerce street west of said depot by farmers and others living south of the depot grounds, or doing business south of them, and since 1883, when the Mineral Point Zinc Company's works were erected on the south of said depot grounds, large quantities of zinc ore have been hauled to said works over the place on what had been Commerce street, where this spur track was. The traffic of all kinds, including that with the railway company, that passed over this place was quite large. Over this spur track, in the line of this street, where this traffic passed over the track, the defendant company made a crossing at the time the track was laid. At the place where the most of the teams crossed this track, the crossing was made of 3-inch oak planks that were 10 or 12 feet long. From the end of this solid plank way there extended for some feet a crossing made by placing a 3-inch oak plank on each side of the rail, with a filling of cinders within the track and between the planks, made as high as the top of the planks. Underneath the planks of the crossing were placed irons or strips of board to bring up the plank even with, or nearly with, the top of the rails. This crossing had not been relaid since it was put in, although particular planks may have been taken out and replaced by others. The crossing had become worn at the time of the accident complained of. The plaintiff complains that, at the time, it was defective and insufficient, by reason of the rails standing an improper distance above it. On January 10, 1893, the plaintiff had gone into the lumber yard of...