Piper v. Chi., M. & St. P. Ry. Co.

• Decision Date: 21 June 1890
• Citation: 46 N.W. 165,77 Wis. 247
• Court: Wisconsin Supreme Court
• Parties: PIPER v. CHICAGO, M. & ST. P. RY. CO.

77 Wis. 247

46 N.W. 165

PIPER

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

Supreme Court of Wisconsin.

June 21, 1890.

Appeal from circuit court, Jefferson county.

This is an action for damages sustained October 13, 1888, at a street crossing of the defendant's railway track one mile east of its Watertown depot, and within the city limits, but outside of the platted portion thereof. It appears from the undisputed evidence that the railway at that point runs a very little north of west and south of east, and is straight for two miles east of the crossing, and for more than 1,100 feet west of the crossing; that the street mentioned is what is known as the “Old Milwaukee Road,” and crosses the railway at that point in a north-westerly and south-easterly direction, forming an acute angle of 27 1/2 degrees; that such highway had existed for about 40 years, and is the main traveled thoroughfare from Pipersville to Watertown; that the railroad track, for 275 feet east of the crossing, is above the ground, on the southerly side, about 4 1/2 feet; that at the end of that distance commences a cut which extends easterly for about 275 feet further, the deepest part of which is 400 feet from the crossing at the south right-of-way fence, where the top of the bank is 6 3/4 feet above the level of the crossing; that from that point, which is about 600 feet east of the crossing, there commences a second cut, known as the “deep cut,” which continues easterly beyond the whistling post, which is a quarter of a mile from the crossing; that the highest part of the embankment on the southerly side of that deep cut is about 22 feet above the track at a point about 1,100 feet east from the crossing; that the space between said right of way and the highway near and east of the crossing contained many trees, a house, barn, sheds, wood-pile, corn-crib, stacks, etc.; that the right of way at the crossing is about 80 feet wide, with a wire fence on both sides; that the highway is about 50 feet wide, with a board fence on the north-easterly side, with cattle-guards on each side of the crossing, and a plank crossing 28 feet wide, about midway between the two cattle-guards; that the regular leaving times for the passenger train in question were: From Milwaukee, 11:15 A. M.; from Ixonia, (6 miles east of this crossing,) 12:46 P. M.; and from Watertown, 1:02 P. M.,--and that the plaintiff was at the time well acquainted with the time when the train usually passed.

There is testimony on the part of the plaintiff to the effect that on the day in question the plaintiff started from his home on said highway, 4 1/2 miles east of this crossing, about 12:30 P. M.; that upon reaching the top of Koch's hill, so called, about 100 rods east of the crossing, the railway track to the east could be seen for more than a mile; that he there looked carefully for approaching trains, but observed none; that, from that point up to the defendant's right of way, no view whatever of the track could be seen; that he drove slowly down the hill; that upon reaching the foot, and perhaps 20 or 30 rods distant from the crossing, his horses struck into a moderate trot, and continued in that way until well upon the defendant's right of way; that while coming down the hill, and from about the middle thereof until so reaching the right of way, he listened carefully but heard nor saw anything to indicate an approaching train; that after he left the stony portion of the hill the road was very dusty, and the wagon made but little noise; that immediately upon going onto the right of way, and somewhere between 50 and 60 feet of the crossing, he turned partially in his seat, and looked east, and listened for approaching trains, and continued to do so until his horses slowed down to a walk, but saw no train, nor sign of any train, approaching; that from that point the plaintiff could have seen the train, had it then been anywhere within at least 900 feet east of the crossing; that thereupon his horses took perhaps a few steps forward, but he could not say how many, when suddenly the near horse began dancing and jumping forward, and the off horse struck into a trot; that thereupon he drew up the reins, and took them well in hand,--drew them up firmly, but did not try to stop the horses; that when his horses began to dance, jump, and trot, as stated, he turned from looking up the track to see what had started them; that he first looked over his horses, to see if anything was the matter with the harness, but saw nothing; that he looked in the direction of the city to the left,--to the west,--to see if any train was approaching from that direction, but saw nothing; that he then turned to look to the right-hand side, to see if anything or anybody had made any motion to start his horses up, but saw nothing; that then, fearing that perhaps some one had driven up behind him, and was attempting to drive past him on the right hand side, he turned, and, as he brought his eyes back to the crossing he noticed that the forward feet of both his horses were very nearly in the center of the track; that he then looked eastward to see who had driven up to pass by him, and saw the engine coming down behind him, and, as he judged, 150 to 175 or 200 feet distant; that upon seeing the engine he pulled with all his strength upon the left rein to bring the horses off the track, knowing, if they made any progress forward, it was certain death to himself; that his eyes lingered just an instant on the engine; that he was horror-stricken to see it coming upon him; that he then turned to see if there was any possibility of saving himself; that he saw the near horse was entirely off the track, and the off horse had his forward feet only inside the rail about 12 to 16 inches; that, while the off horse was in the act of turning away to avoid the engine, he saw the cow-catcher plow under his feet, and the forward part of the engine strike him; that he was himself then so near that, if he had had his right arm extended, he might have touched the driving wheel as it shot by him; that he shut his eyes, thinking he should be crushed under the wheels of the cars, and that that was the last he knew for hours afterwards; that from the time he got there, upon the right of way, and until he looked around and saw the cars, as stated, he heard no ringing nor whistling on the part of the train, and is positive that no signal was given, and that he heard no sound of any train; that the day was very quiet and warm; that a gentle breeze was blowing from the north-west; that he listened all the...