Paquin v. Wisconsin Central Railway Company
| Decision Date | 03 August 1906 |
| Docket Number | 14,784 - (148) |
| Citation | 108 N.W. 882,99 Minn. 170 |
| Parties | EARL PAQUIN v. WISCONSIN CENTRAL RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover $30,000 for personal injuries. The case was tried before Orr, J., who directed a verdict in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed. Affirmed.
Railway -- Failure to Fence.
A railway company neglected to fence its track as required by R.S. (Wis.) 1898, § 1810. Freight cars standing on a track with a two and a half per cent. grade, with defective brakes, and held by blocks placed in front of the wheels were started by trespassers, who removed the blocks. A four year old boy, who entered the right of way where a fence should have been and climbed on the cars, was thrown therefrom by their starting and injured. Held:
(a) The Wisconsin statute imposes a liability upon a railway company when it fails to fence the track, for injuries only which are the proximate result of the failure to fence.
(b) The failure to fence was not the proximate cause of the accident by which the plaintiff was injured.
Samuel A. Anderson, for appellant.
Thomas H. Gill and James D. Armstrong, for respondent.
This is an action to recover damages alleged to have been caused to the plaintiff by the negligence of the defendant railway company. A verdict was directed for the defendant, and the plaintiff appeals from an order denying a motion for a new trial.
There is practically no controversy as to the facts. At the time of the accident the plaintiff was about four years of age. The street on which he lived in Ashland, Wisconsin, where the accident occurred, ran north and south across certain railway tracks of the defendant, which ran east and west about one-half block from the plaintiff's home. These tracks consisted of the main line, known as the "dock track," a side track parallel with the main track, and a third or spur track connected with the side track by a switch at or near the extension of the street known as Third Avenue East, being the first street west of, and parallel with, the street on which plaintiff lived. This last-mentioned track ran down a two and a half per cent. grade in an easterly and northeasterly direction into a large sawmill and lumber yard which lay between the tracks and the bay. On July 31, 1905, the defendant had two freight cars coupled together, standing on the spur track on the grade. On each car there was a hand brake, but one was useless and the other practically so. The cars were secured in the position where they were standing by blocks placed in front of certain of the wheels. The track was owned, maintained, and operated by the defendant, and was not situated in any depot grounds. It was admitted by the defendant that the track in question, the dock tracks, and the other tracks in the vicinity were at the time of the accident unfenced and had never been fenced; that the spur track upon which these cars were situated and upon which the boy was hurt was a private spur track upon the private premises of the lumber company; that the boy obtained access to the particular track by walking down the tracks, across the dock track, across the spur track, and onto the second spur track, on which the two cars were standing; that those cars had been left by the switchmen of the Wisconsin Central Railway standing on the track and properly blocked so as to prevent their moving downgrade; that the impelling, the moving, force which started the cars in motion was the interference therewith by two small boys, who were in no way connected with the Wisconsin Central Railway; that for the purpose of amusement, or for the purpose of mischief, these boys knocked the blocks out from under the car; that just as the blocks were knocked out from under the car and the car started in motion, the plaintiff in this case climbed upon the car and was thrown off and received the injuries for which this action was brought. It appears that the plaintiff left his home, went along an alley on the north, and finally turned and went down an incline on the main or dock track, then went a few feet along the dock track, then down another incline across the side track, thence to the track where the cars were standing, and at once climbed upon the lower car. While he was in the act of climbing upon this car, after he had reached the top, three boys, who were playing about the car, knocked the blocks out from behind the wheels and started the car downgrade, and the plaintiff was thrown under the wheels and his leg crushed. The plaintiff predicates negligence upon the failure of the railway company to fence its tracks as required by the statutes of Wisconsin and leaving the cars with defective brakes standing upon the incline track with insufficient fastenings.
1. The rights of the parties to this action are to be determined by the laws of the state of Wisconsin, and this court will, for the purposes of the case, give the Wisconsin statute the construction which has been given to it by the courts of that state. Roe v. Winston, 86 Minn. 77, 90 N.W. 319; Benson v. Chicago, St. P., M. & O. Ry. Co., 78 Minn. 308, 80 N.W. 1050. The common law of a sister state is to be ascertained by an examination of the decisions and opinions of its courts. Crandall v. Great Northern Ry. Co., 83 Minn. 190, 86 N.W. 10; Engstrand v. Kleffman, 86 Minn. 403, 90 N.W. 1054.
2. R.S. (Wis.) 1898, § 1810, provides that
Every railroad corporation operating any railroad shall erect and maintain on both sides of any portion of its railroad (depot grounds excepted) good and sufficient fences of the height of four and a half feet, with openings or gates, or bars therein and suitable and convenient farm crossings of the road for the use of the occupants of the lands adjoining and shall construct and maintain cattle guards at all highway crossings, and connect their fences therewith to prevent cattle and other domestic animals from going on such railroads. All railroads 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. Until such fences and cattle guards shall be duly made, every railroad corporation owning or operating any such road shall be liable for all damages done to cattle, horses or other domestic animals, or persons thereon, occasioned in any manner in whole or in part by the want of such fences or cattle guards; but after such fences and cattle guards shall have been in good faith constructed such liability shall not extend to damages occasioned in part by contributory negligence or to defects existing without negligence on the part of the corporation or its agents.
Under this statute the defense of contributory negligence is not available until after the fence has been constructed in good faith. Quackenbush...
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