Peltier v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 02 October 1894
• Citation: 88 Wis. 521,60 N.W. 250
• Court: Wisconsin Supreme Court
• Parties: PELTIER v. CHICAGO, ST. P., M. & O. RY. CO.

88 Wis. 521

60 N.W. 250

PELTIER

v.CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Wisconsin.

Oct. 2, 1894.

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

Action by Francis Peltier, Jr., by guardian ad litem, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. Judgment was rendered for defendant, and plaintiff appeals. Affirmed.

This is an action to recover for personal injuries. The defendant operates a railroad track on what is known as “Connor's Point,” near the city of Superior. This track runs northwest and southeast, parallel with the southwest shore of Superior bay. The right of way on which defendant's track runs is 25 feet wide, and the northeast line thereof is about 50 feet from the shore line of the bay. Immediately joining and on the southwest of the defendant's right of way is the right of way of the Northern Pacific Railway, which is 40 feet wide, and also has a railroad track upon it. Both of these tracks are transfer tracks, not used for train service, but for switching, storing, and transferring cars from one road to the other. The defendant's right of way is not fenced. Several small houses stand upon the strip of shore between the defendant's right of way and Superior bay, which have been built and are occupied by squatters. The occupants of these houses have no outlet to stores or schools save across defendant's railway tracks, and the tracks were continually used by numbers of people for that purpose. In one of these houses, in December, 1890, lived Francis Peltier, Sr., with his wife and two children, one of them being the plaintiff, who was at that time two years and nine months old. One St. Peter lived in another of these houses, on the strip of beach at a distance of 100 feet or so from Peltier's house. Both houses were built on posts, and stood fronting the railway track of the defendant, the front being about one foot outside of the right of way. Over the front door of St. Peter's house was a stormhouse, four feet wide, most of which stood within defendant's right of way. Defendant's track stands nearly nine feet above the water of the bay, and about two feet above the floors of the houses, the track being upon an embankment made of old ties and dirt. On the afternoon of December 16, 1890, the plaintiff's mother made a visit at Mrs. St. Peter's house, taking with her the plaintiff and an infant of 18 months of age. At the time she went to Mrs. St. Peter's house, there were 15 to 20 freight cars standing on defendant's track, apparently coupled together, the north end of the train being in front of the St. Peter house. One or two other freight cars stood further to the north, separated a few feet from the first-mentioned train of cars. All of the cars had been standing there for some hours. Mrs. Peltier stayed at Mrs. St. Peter's house perhaps two hours, and some time between 3 and 4 p. m. went home to unlock the door and build the fire, and left her children at Mrs. St. Peter's house. In a few minutes she came back to get the children. When she came out of the St. Peter house the second time, she was carrying the baby, and plaintiff walked behind her, and Mrs. St. Peter also went out on a platform in front of the house. The edge of this platform was about four feet from the railroad track, and two feet below it. While the women were standing on the platform, Mrs. Peltier missed the plaintiff, and asked Mrs. St. Peter where he was. Mrs. St. Peter looked, and saw him under a coal car right in front of her house, being one of the cars of 15 or 20 first mentioned. The cars were not then moving, but they saw that the engine was attached to the southeast end of the train. According to Mrs. St. Peter's evidence, the boy got across the track, went a few steps towards the Northern Pacific track, and then returned, and, while trying to recross the defendant's track, was run over by the train, which was just then backing a few feet, in order to couple on the detached cars. The boy lost one foot and one hand. No whistle or bell was sounded. The evidence of Mrs. St. Peter was apparently that the plaintiff was trying to cross the track at the opening between the train and the detached cars when he was run over; but the evidence of the trainmen was to the effect that he was run over three or four car lengths from the end of the train; hence, that he must necessarily have been crawling under or between cars in the train. A special verdict was returned by the jury, in which they found, in answer to appropriate questions--First, that the defendant, before the accident, sanctioned the practice of persons living near its track using such track to travel on at the place where the accident happened; second, that the trainmen, in the exercise of ordinary care, ought to have anticipated that a child might probably be upon the track, in the immediate vicinity of the cars where the accident occurred, when they caused the cars to be moved back; third, that the trainmen failed to exercise ordinary care when they moved the cars back at the time of the accident; fourth, that such failure to exercise ordinary care was not the proximate cause of the injury; fifth, that the railroad track, where the boy entered thereon, was sufficiently protected, without a fence, to prevent cattle and other domestic animals from straying upon such tracks; sixth, that there was want of ordinary care on the part of the boy's mother that contributed to produce the injury complained of. On this special verdict, judgment was entered for the defendant, and from such judgment the plaintiff appeals.John Brennan, B. F. Hutchins, and R. M. Bashford, for appellant.

Carl C. Pope and Thomas Wilson, for respondent.

WINSLOW, J. (after stating the facts).

The grounds of negligence claimed by the plaintiff were failure to fence the right of way and failure to give signals of the movement of the cars, as well as failure to keep a proper lookout. The verdict of the jury establishes the fact, in answer to the first three questions, that the train was negligently moved when the plaintiff was injured; but, in response to the fourth question, it was found that such negligence was not the proximate cause of the injury. There is nothing inconsistent with this fourth finding elsewhere in the verdict, nor is it claimed that any material fact in controversy was not submitted to the jury; hence it is very clear that if this fourth finding is founded upon sufficient evidence, and no error was committed by the trial court in its submission to the jury, the plaintiff cannot recover. To this question, therefore, we shall address ourselves. There was but one error claimed in the admission and rejection of evidence, and as that alleged error related...