Nordean v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 12 March 1912
• Citation: 148 Wis. 627,135 N.W. 150
• Court: Wisconsin Supreme Court
• Parties: NORDEAN v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

148 Wis. 627

135 N.W. 150

NORDEAN

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of Wisconsin.

March 12, 1912.

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.

Action by Overd Nordean against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for defendant and from an order denying a new trial, plaintiff appeals. AffirmedCharles Line (John Brennan, of counsel), for appellant.

Luse, Powell & Luse (Alfred H. Bright and John L. Erdall, of counsel), for respondent.

TIMLIN, J.

The complaint in this action showed that the plaintiff was 10 years of age and appeared by guardian ad litem, and that on October 23, 1909, and for a long time prior to that day, the defendant railway corporation was, ever since has been, and now is, operating and running a railroad for gain and profit, running engines and cars over and upon its tracks in Douglas county, and that its right of way was unfenced. The answer contains a number of specific admissions followed by a general denial, among them the admission that the right of way was not fenced. The injury in question occurred on the 23d of October, 1909. The negligence averred is in failing to erect, build, and maintain fences along its track on both sides thereof, and in other things not relevant here. As we construe the pleadings, there is no admission that the defendant was operating the railroad in question for three months prior to October 23, 1909. The injured boy resided with his parents in the city of Superior, and had wandered in boyish play with a companion of about his age some distance into the country and onto the railroad track at the place of accident, where he evidently attempted to take hold of a passing freight train for some purpose. There was no fault or negligence on the part of the train crew. Plaintiff was not injured upon any public or other crossing place, but stood on the loose gravel next to the rail when the train came. The loose gravel slipped in under, and his right leg got on the rail, and two wheels ran over it. He does not know exactly what happened. After proof of the injury and proving that the place in question was not upon any depot grounds, the plaintiff rested. The defendant proved that it began to haul freight into Superior on this track on September 10, 1909, and that was the first operation for business; that the first passenger service commenced November 29, 1909. The railroad in question had just been built and was not entirely completed. On motion the circuit judge directed a verdict for the defendant upon the ground that the railroad had not been in operation for three months prior to the time when the boy was injured; hence the obligation to fence had not arisen. There was a change of attorneys for plaintiff. The plaintiff moved to set aside the verdict and for a new trial on the ground that the verdict was contrary to the evidence and to the law and on the ground of newly discovered evidence which the plaintiff's former counsel through mistake, inadvertence, and inexcusable neglect failed to discover and produce at the trial. On this motion he also asked to be allowed to make and file an amended complaint. The moving papers averred that the guardian was advised by plaintiff's attorney that all that was necessary to fix the liability of the defendant was to show that the railroad was not fenced and was not used by the defendant for depot grounds at the time and place of the injury. She afterward learned that it was necessary to prove that the defendant commenced to operate its railroad more than three months prior to the time of the injury. That it was operated for more than three months prior to the injury she has since discovered to be the fact as shown by certain affidavits annexed to hers. The first of these affidavits is by the former attorney for plaintiff, in which he states that he had learned since the trial that the defendant commenced on July 6, 1909, to operate its railroad at the point thereon where the plaintiff was injured and continued since. The next by Gust Anderson, made apparently on personal knowledge, is to the effect that the defendant on or about July 6, 1909, commenced to operate its railroad between a point in the city of Superior, where the railroad crosses Sixty-Fourth street and a point southerly therefrom where the said railroad crossed the track of the Great Northern Railway in the town of Superior covering the place of accident and continued ever since running engines, cars, and trains thereon. Four others depose to the same effect. The amended complaint which was offered on the motion avers, among other things, on information and belief “that on or about said 3d day of July, 1909, and for more than three months prior to the said 23d day of October, 1909, the defendant commenced to operate its railroad, from said city of Superior south, through the said town of Superior, and past the point on said railroad, in said town of Superior, where the plaintiff was injured, by running over and upon the track of said railroadlocomotive engines, cars, and trains.” The court allowed the amended complaint to be filed, but denied the motion for a new trial upon the grounds stated in the order: “(1) That no error of law was committed upon the trial; (2) that the affidavits regarding the discovery of new evidence do not show reasonable or proper diligence on the part of the plaintiff or his attorneys in endeavoring to discover such evidence and to produce it upon the trial; (3) that the law does not require a newly built or constructed railroad to be fenced until three months after the commencement of the operation of the railroad for business other than mere construction work; (4) that the only ground of surprise for counsel for plaintiff upon the first trial was the ruling of the court that section 1810 did not make the defendant responsible for failure to fence its railroad until three months after it commenced to operate the same; (5) that the mistake of counsel for the plaintiff upon the first trial, if any, was a mistake of law in construction of section 1810.”

Several interesting questions are discussed by counsel; but the principal controversy, and that which determines the case on this appeal, relates to the meaning of the words “to operate the same” found in section 1810, Stats. 1898, in the following sentence: “All roads hereafter built shall be so fenced and such cattle guards be made within three months from the time of commencing to operate the same so far as operated.” Does the word “operate” mean the running of trains upon the finished or partially finished portions of the new roadbed for construction purposes, or does it mean such running in the transportation of goods or passengers? The affidavits upon the motion for a new trial do not specify which of these the affiant meant by operation. The amended complaint evidently relates to construction work. If the statute means operation in the regular business of the road, carrying goods and passengers, the affidavits are not sufficiently explicit to overcome the evidence given at the trial, and, besides, it is conceded by counsel upon the oral argument that if the latter is the true meaning all his other grounds of appeal must fail. A masterly argument is submitted for appellant consisting of: First, a reference to the following precedents bearing upon the meaning of the word “operate”: Glandon v. Railway Co., 68 Iowa, 457, 27 N. W. 457; C. K. & W. R. R. Co. v. Hutchinson, 45 Kan. 186, 25 Pac. 576; H. & G. N. Ry. Co. v. Meador, 50 Tex. 77;McKivergan v. A. & E. Lumber Co., 124 Wis. 60, 102 N. W. 332;Railway Co. v. Totten, 1 Kan. App. 558, 42 Pac. 269; Railway Co. v. Heflin, 65 Ill. 366;Holden v. Rutland Ry. Co., 30 Vt. 297;Hardt v. Railway Co., 130 Wis. 512, 110 N. W. 427;Meo v. Railway Co., 138 Wis. 340, 120 N. W. 344. Second, a contention that the purpose of the act is to protect persons who might be on or near the track, and such persons are in as much danger from the operation of a construction train as from a freight or passenger train run for hire, so that the purpose of the statute would be defeated by denying redress to those injured by the construction train. Third, an argument to the effect that section 1810 is a...