Nelson v. Duluth, S. S. & A. Ry. Co.

• Decision Date: 23 October 1894
• Citation: 60 N.W. 703,88 Wis. 392
• Parties: NELSON v. DULUTH, S. S. & A. RY. CO.
• Court: Wisconsin Supreme Court

88 Wis. 392

60 N.W. 703

NELSON

v.DULUTH, S. S. & A. RY. CO.

Supreme Court of Wisconsin.

Oct. 23, 1894.

Appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Action by Frederick Nelson against the Duluth, South Shore & Atlantic Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

This is an action to recover damages for personal injuries. The defendant's track runs directly through the village of Iron River from east to west. Main street, in said village, runs north and south, and crosses the track substantially at right angles. The defendant's right of way is 66 feet in width, and its track is in the center of the right of way, and is straight for about 2,000 feet east of Main street. On the morning of the 17th of November, 1892, in the daytime, the plaintiff was driving a team of horses on Main street, and approaching the track from the south. The team was attached to a lumber wagon, and plaintiff stood up about the middle of the wagon. At the southeast corner of Main street and the right of way stood a store building, which cut off the view of the track east of Main street to any person approaching on Main street from the south, until he arrived at a point about 30 feet from the track. The plaintiff had looked up the track to the east before reaching this building, but saw no train. He stopped his team when in front of the store, and readjusted the wagon box, and stayed there about a minute, as he testifies. When he had done this, he drove forward down an incline of about three feet towards the track, his team walking and under control. An engine was pushing a train of loaded flat cars from the east, and, when the horses got within four or five feet of the track, they became frightened at the approaching cars, jumped forward two or three jumps across the track, and the forward car of the train struck the wagon, throwing plaintiff out, and inflicting serious injuries. There was evidence that the train was running very fast; that there was no lookout on the forward car; and that no whistle was blown or bell rung. The jury returned a special verdict, by which they found (1) that the train was negligently operated; (2) that such negligent operation of the train caused plaintiff's team to become unmanageable, by reason of which plaintiff was carried in front of the train, and was injured; (3) that such negligence was the proximate cause of plaintiff's injury; (4) that plaintiff was not guilty of contributory negligence; (5) that plaintiff's damages were $10,000. A motion for a new trial was overruled, and from judgment for the plaintiff on the verdict the defendant appealed.Catlin & Butler and Carl C....