Northern Pac. R. Co. v. Austin

• Decision Date: 27 November 1894
• Docket Number: 150.
• Citation: 64 F. 211
• Parties: NORTHERN PAC. R. CO. v. AUSTIN.
• Court: U.S. Court of Appeals — Seventh Circuit

64 F. 211

NORTHERN PAC. R. CO. v. AUSTIN.

No. 150.

United States Court of Appeals, Seventh Circuit.

November 27, 1894

Thomas H. Gill, for plaintiff in error.

S. N Dickinson, for defendant in error.

Before WOODS and JENKINS, Circuit Judges.

JENKINS Circuit Judge.

The defendant in error, as administratrix of the estate of her deceased husband, Willard Austin, brought her action under a statute of the state of Wisconsin to recover damages for the death of her husband, caused by the alleged negligence of the plaintiff in error. The accident by which the deceased came to his death occurred at a highway crossing called 'Paint Creek Crossing,' some three miles east of Chippewa Falls on the Wisconsin Central Railroad, at the time operated by the plaintiff in error. At that point there was s single track running substantially east and west, crossing the highway at right angles. Westerly from the highway, and for a distance of about 275 feet, the railway runs on a sharp curve through a cut of from 10 to 15 feet, then for 225 feet over a fill, then entering and continuing in a cut westerly for something over 100 rods from the highway. One standing on the railroad track at the crossing is unable to see a locomotive approaching from the west can only be seen within a distance of 100 feet from the crossing. The highway between Chippewa Falls and Cadott, which crosses this railway at the place of the accident, on the southerly side of the railway curved around the intervening hill between the highway and the railway, an approaching train being hidden from the sight of a traveler on that part of the highway for a distance of 300 feet and over before reaching the crossing; and for a distance of about 80 feet from the crossing the intervening hill seriously interferes with the hearing by a traveler upon the highway of the signals of trains approaching the crossing from the west. The accident occurred at about 8 o'clock in the morning of the 12th of February, 1892,-- a clear cold, frosty morning. The deceased, who was familiar with the crossing, was driving a fairly spirited team hitched to a pair of bobs. According to the testimony of the engineer of the train, which came from the west, he first observed the deceased when the train was about 60 feet from the crossing and the horses were about 20 feet from the track. The train had a speed of about 18 miles an hour, and the horses were traveling at about the rate of 6 miles an hour. The deceased was standing in the middle of the front bob with his overcoat on, its collar turned up around his face, and a scarf or some such article tied around the collar. The negligence charged was the failure of the engineer to sound the whistle or to ring the bell on the approach of the train to the crossing, and also a failure by the company to restore to its former state of usefulness the highway in question, which had been changed when the railroad was constructed, so that the travel at and south of the crossing must turn to the southwesterly, around the base of the hill, which thus obstructed the view of trains approaching from the west, whereas previously the travel had gone directly over the hill.

The only question we are asked to review is that of the alleged...