Phillips v. Milwaukee & N. R. Co.

• Decision Date: 23 September 1890
• Citation: 77 Wis. 349,46 N.W. 543
• Court: Wisconsin Supreme Court
• Parties: PHILLIPS v. MILWAUKEE & N. R. CO.

77 Wis. 349

46 N.W. 543

PHILLIPS

v.MILWAUKEE & N. R. CO.

Supreme Court of Wisconsin.

Sept. 23, 1890.

Appeal from circuit court, Winnebago county.Alfred H. Bright, ( Charles W. Felker, of counsel,) for appellant, cited, on the question of contributory negligence: Butler v. Railroad Co., 28 Wis. 487. Following that case Gower v. Railway Co., 45 Wis. 182;Ferguson v. Railroad Co., 63 Wis. 145, 23 N. W. Rep. 123;Hoye v. Railway Co., 62 Wis. 666, 23 N. W. Rep. 14;67 Wis. 1, 29 N. W. Rep. 646; Piper v. Railway Co., ante, 165; Seefeld v. Railway Co., 70 Wis. 216, 35 N. W. Rep. 278.

Bouck & Hilton and Smith & Schoetz, for respondent.

ORTON, J.

In the city of Menasha there are three streets running north and south, viz.: Milwaukee street, and, towards the east, Racine street, and then Appleton street. The railroad of the appellant company, coming from the west, after it crosses Milwaukee street, runs in a south-easterly direction towards Racine street, and then crosses Racine and Appleton streets in a due easterly direction. The depot grounds lie between Milwaukee and Appleton streets, and the depot buildings are situated between Racine and Appleton streets. From some distance west of Racine street there is a main switch track south of the main track, running east across Racine street; and a short distance east of that switch there is another switch track running east, also across Racine street, and some distance south of the other switch track. The deceased lived north-west of the company's yard, and on the morning of the 4th day of April, 1887, had left his home to go to church on Appleton street, south-east of the yard, through the company's grounds, as he had been accustomed to do. The weather was cold and stormy, and he had on a heavy overcoat, a cap, and a shawl about his face and head. The men doing the switching protected themselves by staying on the engine when not throwing a switch, and the persons usually around the depot were inside. Five loaded cars had been taken from east of Racine street, and two of them were cut off and kicked west on the main line, and the remaining three cars were kicked east on the south switch track, to run unattended over Racine street. The deceased was first seen by the engineer and other employes walking eastwardly on the main track west of the switches, and then again further east on the north side of the main track, and then lastly on the south side of the south switch track going towards Racine street. He was met and passed by the two cars going west. There was a sidewalk on the west side of Racine street from Third street south, across both of the switch tracks towards the north. Soon afterwards the crushed and mangled body of the deceased was found partly on the south switch track about 15 feet east of the sidewalk. The upper part of it was lying south of the south rail and the feet over it. Blood was found on the east side of the sidewalk on the south switch track and from there blood was trailed along on the track to where the body was found. Some of the witnesses of the defendant testified to seeing one or two drops of blood about 15 feet west of the sidewalk on the track; but the witnesses of the plaintiff testified that they examined the track for blood spots at that place, and could not find any. The jury had the right, therefore, to treat such fact as unproved, as they evidently did. It is therefore reasonable to suppose that the deceased was struck by the cars on the sidewalk where it crosses the south switch track, and his body dragged to where it was found. There being no witness to this painful accident, how the deceased came to be on the sidewalk at that place, and whether walking north or south on it, must be determined, if at all, by circumstantialevidence. The learned counsel of the appellant contends that it is unaccountable how the deceased came to be there, and that it is entirely a matter of conjecture. That may be so, but is it necessary that the plaintiff account for his being on the sidewalk at that time and place? If it is shown that he met his death while walking on the sidewalk, where he had a right to be, that is sufficient for the plaintiff's case, and it is incumbent on the defendant to show that he was guilty of any want of ordinary care in placing himself in that position. It is therefore incumbent on the defendant to account for his being there, and if there is no proof of it, and it is all a matter of conjecture, then it follows that the deceased is presumed to have placed himself where he was killed, with due care, or at least without any want of ordinary care. The learned counsel says in his brief: “Admitting that the deceased had reached that place when struck, is not the manner of his coming there left to conjecture? But verdicts cannot rest upon conjecture.” The verdict in this case does not rest on any conjecture as to how he came there. The verdict for the plaintiff rests rather on the fact alone that he was lawfully there, where he had a right...