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

• Decision Date: 21 March 1903
• Citation: 118 Wis. 148,93 N.W. 1135
• Parties: MOREY v. LAKE SUPERIOR TERMINAL & TRANSFER RY. CO.
• Court: Wisconsin Supreme Court

118 Wis. 148

93 N.W. 1135

MOREY

v.LAKE SUPERIOR TERMINAL & TRANSFER RY. CO.

Supreme Court of Wisconsin.

March 21, 1903.

Appeal from Superior Court, Douglas County; C. Smith, Judge. Action by Ray Rockwell Morey, by guardian, against the Lake Superior Terminal & Transfer Railway Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed. Action to recover compensation for personal injuries. The circumstances of the injury upon which liability is claimed are that on the occasion in question defendant was operating its train at a speed of 20 miles per hour, whereas the legal limit of speed was 15 miles per hour, without giving signals of the approach to the street crossing where the injury occurred as the law requires; that Ray Rockwell Morey, the person injured, a boy of about 12 years of age, while traveling south upon such street where it was crossed by defendant's tracks, intending to proceed to his home on the opposite side thereof, when about 39 feet from the particular track on which he was injured, such point, on account of obstructions to a view to the west, being the first place where he could see a train approaching from that direction if one was in view and in dangerous proximity to his pathway, he looked in such direction, having a clear view of the track to the west for a distance of about half a block from his place of crossing; that there was no train in sight; that he then looked east, keeping on his course till he reached a point about three and one-half feet from the place of injury, when he again looked west and saw a train about 35 feet away, coming at such a furious rate of speed as to cause him to be overcome with a sense of fear and to lose his presence of mind and self-control, and to thereby fall toward the track, whereby his left foot was unavoidably placed over the north rail thereof, where it was immediately struck by the train and severed from his leg. Defendant demurred to the complaint for insufficiency. The demurrer was sustained.

*1135Victor Linley, for appellant.

J. A. Murphy and Heber McHugh, for respondent.

MARSHALL, J. (after stating the facts).

In this case the members of the court taking part in considering the questions involved being equally divided in respect thereto, the order appealed from must be affirmed ex necessitate. The Chief Justice and the writer concur in views harmonizing with the decision of the lower court, while Justices WINSLOW and DODGE are of a...