Quackenbush v. Wis. & M. R. Co.

• Decision Date: 17 April 1888
• Parties: QUACKENBUSH v. WISCONSIN & M. R. CO.
• Court: Wisconsin Supreme Court

71 Wis. 472

37 N.W. 834

QUACKENBUSH

v.WISCONSIN & M. R. CO.¹

Supreme Court of Wisconsin.

April 17, 1888.

Appeal from circuit court, Chippewa county; S. H. CLOUGH, Judge.

Action by Clarentine E. Quackenbush, administratrix of Edward C. Quackenbush, against the Wisconsin & Minnesota Railroad Company for damages for the death of her husband by the negligence of defendant. Judgment for plaintiff. Defendant appeals.Edwin H. Abbott, ( D. S. Wegg and Howard Morris, of counsel,) for appellant.

H. H. Hayden and Bartlett & Hayden, for respondent.

ORTON, J.

The facts of this case are substantially and briefly as follows: The plaintiff was the wife, and brings this suit as the administratrix of Edward C. Quackenbush, deceased. The deceased was the conductor of a train of flat cars engaged in ballasting the railroad of the defendant between the stations of Thorp and Cadott, east of Chippewa Falls, about the 8th day of July, 1881. That part of the road had been open for general business since November, 1880. The flat cars had been loaded with the surfacing material at a pit lying westerly of Cadott, and was pulled by the engine to a point between the stations of Thorp and Stanley, and there unloaded, and was then being pushed by the engine back towards Stanley station. When about three miles west of said station, the train collided with a heifer upon the track, and was derailed, and the lifeless remains of the deceased were found among the wreck. At the moment of the collision the deceased was on the westerly portion of the train. It was claimed by the appellant that so pushing the train on that part of the track was a violation of the rules of the company, to the knowledge of the deceased. At about 600 feet easterly from the place of the accident one MacDonough had established a place for the delivery of piles cut from adjoining land on the defendant's right of way for shipment on the road. MacDonough had cut roads into the country opposite, on which material to be there shipped was hauled, and these logging roads extended three-quarters of a mile on both sides of the railroad into the country. The nearest highway crossing was a mile and a half from the place of the accident, and the nearest farm crossing was from a half mile to three-quarters of a mile east, or, some witnesses say, a mile and a half east, and the nearest cultivated farms were half a mile distant either way. The railroad of the defendant, on both sides opposite the place where the animal was run over by the train, and as is claimed by the respondent, where it got upon the track, had never been fenced, although such places were outside of depot grounds, and not at farm or highway crossings, and there was no pond, water-course, ditch, embankment, or other sufficient protection rendering a fence unnecessary at such places to prevent cattle from straying upon the right of way of the defendant, and although the road had been built and operated more than three months, in violation of section 1810, Rev. St., as amended by chapter 193, Laws 1881. The jury found that this was the condition...