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

• Decision Date: 23 April 1895
• Citation: 62 N.W. 1045,90 Wis. 186
• Court: Wisconsin Supreme Court
• Parties: SCHLIMGEN v. CHICAGO, M. & ST. P. RY. CO.

90 Wis. 186

62 N.W. 1045

SCHLIMGEN

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

Supreme Court of Wisconsin.

April 23, 1895.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by John Schlimgen, as administrator, against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint alleges, in effect, that February 10, 1893, James Kapinos, while passing on foot over the defendant's right of way at Scott street crossing in the village of Mazomanie, was, by the negligence of the defendant, struck by detached freight cars and badly injured, without any fault or negligence on his part. The answer consists of admissions and denials. At the close of the trial the jury returned a special verdict, to the effect: (1) That the defendant's servants and employés who had charge of the train at the time in question were not in the exercise of ordinary care in the management and running of the engine and cars at the time in question; (2) that such lack of exercising ordinary care on their part was the direct cause of the injury to the plaintiff; (3) that the east end of the approaching cars, when the plaintiff started from the place where he stood, south of the main track, to go across the track, was 60 feet west of him; (4) that the plaintiff, when he started from the place where he stood, south of the main track, to go across it, did not look west along the track to see if there were cars coming; (5) that the plaintiff, when he started to cross the main track, was 15 feet south of it; (6) that the cars in passing from the coal shed to the west end of the station platform moved at the rate of six miles per hour; (7) that the plaintiff was not guilty of any want of ordinary care which directly contributed to produce the injury; (8) that the plaintiff's damages were assessed at $5,000. From the judgment in favor of the said James Kapinos entered on that verdict, the defendant brought this appeal. Since taking said appeal, and on December 23, 1894, the said John Kapinos died in Milwaukee, and thereupon, on April 3, 1895, John Schlimgen was appointed administrator of his said estate, and thereupon substituted as plaintiff in this action.Burton Hanson and George W. Bird, for appellant.

Bashford, O'Connor, Polleys & Aylward, for respondent.

CASSODAY, J. (after stating the facts).

The depot in Mazomanie fronts to the north. At the east end of the depot platform is Brodhead street, running north and south, and about 80 feet wide. About 275 feet east of Brodhead street is the turntable, and about 540 feet east of Brodhead street is the water tank. Immediately north of the depot, and about 8 feet from it, is the main railway track, and there are two tracks north of that, and immediately south of the depot is another track, and about 65 feet south of that is still another track. Southwest from the depot, and about 100 feet from it, are the stock yards, and the ice house is immediately west of that, and they are both between the two last-named tracks. The stock yards and the ice house together are about 160 feet in length. Nearly 200 feet west of the depot, and 320 feet west of Brodhead street, and parallel with it, is what was originally laid out as Scott street, 80 feet in width, but which is now entirely crossed by the stock yards and the ice house mentioned. The depot platform runs west to Scott street. Scott street, north of the railway grounds, is still used as a street, but is considerably narrowed up by buildings and other incumbrances. That part of Scott street within the railway grounds north of the ice house and stock yards is still used for teams by those going to the depot or stock yards from that direction, and is also in daily use by persons on foot. About 320 feet west of Scott street, and parallel with it, is Crocker street, and 320 feet west of that, and parallel with it, is a public highway on the section line. About 165 feet west of Scott street is the east end of the coal shed, which runs west 112 feet, the north side of which is 8 1/2 feet south of the main railway track, and the same is about 19 feet wide, its height being uneven, its greatest height being about 28 feet; and the west end is about 40 feet east of Crocker street. From the public highway on the section line at the west to the water tank at the east, a distance of over 1,700 feet, the main track forms the arc of a very large circle, with the depot on the concave side and a little east of the middle. So that the main railway track on the east side of Crocker street is about 75 feet further north than on the east side of the public highway mentioned, and the main railway track at the center of Scott street is about 10 feet further north than at the east line of Crocker street, Such was the general situation at the time of the injury in question.

The undisputed evidence is to the effect that at the time of the trial Kapinos was 52 years of age; that he had lived in this country 38 years; that 15 years of the time he had resided in Mazomanie; that he had worked for the defendant on a gravel train and section work from the spring of 1867 to the fall of 1892; that he was familiar with the manner of handling brakes and train signals; that on the morning of February 10, 1893, he went from where he was living, in the southeast part of the village, to see one Krachey, residing on Scott street north of the railway; that, failing to find him, he again returned to Krachey's house, but he was still absent from home; that he then went south on Scott street to the main railway track, where he found two section men shoveling snow from the track,--one, Micula, near the west line of Scott street, and a few feet south of the main railway track, and the other, Loudine, near the cinder pit, and a few feet south of the main railway track; that the cinder pit was about 10 feet long, and under the main railway track; that the east end of the cinder pit was 13 feet west of the west end of the depot platform; that from the west end of the cinder pit to the east end of the coal shed was 209 1/2 feet; that Kapinos stopped and talked with Loudine; that while thus talking, and standing 8 or 10 feet south of the main railway track, and about 2 feet west of the cinder pit, he looked west, and saw the engine, with the bell ringing, about the center of the coal shed, coming from the...