Shea v. Chi., M., St. P. & P. R. Co.

• Decision Date: 16 June 1943
• Citation: 243 Wis. 253,10 N.W.2d 135
• Parties: SHEA et al. v. CHICAGO, M., ST. P. & P. R. CO. et al.
• Court: Wisconsin Supreme Court

243 Wis. 253

10 N.W.2d 135

SHEA et al.

v.CHICAGO, M., ST. P. & P. R. CO. et al.

Supreme Court of Wisconsin.

June 16, 1943.

Appeal from a judgment of the Circuit Court for Eau Claire County; Clarence E. Rinehard, Judge.

Reversed.

WICKHEM and MARTIN, JJ., dissenting.

This is an action commenced May 28, 1942, by Donald Shea, Jr., a minor, by Donald Shea, his guardian ad litem, and Donald Shea, plaintiffs, against Chicago, Milwaukee, St. Paul, and Pacific Railroad Company, and Henry A. Scandrett, Walter J. Cummings and George I. Haight, as trustees, defendants, to recover for personal injuries suffered by Donald Shea, Jr., while crawling under a freight car of one of defendants' trains on the 18th day of September, 1941. From the judgment entered on December 9, 1942, in favor of plaintiffs, defendants appeal.

Donald Shea, Jr., seven years of age, lost his left arm between the elbow and shoulder at about 7:50 a. m. on September 18, 1941, when he crawled under a freight car which was part of one of defendants' trains in the city of Eau Claire. The train, consisting of about twenty-three cars, was brought in about 7:30 a. m., and when it stopped it blocked a foot path between the Chippewa bridge and Barstow Street. The conductor cut the train so as to leave an opening at the foot path about 40 feet wide. A switching crew then took over the train. The head brakeman switched three cars next to the engine into the housetrack. The conductor proceeded to the opening at the foot path. While he was there a school girl, about thirteen years of age, crossed on the foot path. The train was then connected by the conductor and he signaled the train to go ahead.

Seven children, including Donald Shea, Jr., came along the foot path from the north. Their ages ranged from six to thirteen years. They were on their way to school. They testified that when they saw the train it was coupled together and was stationary. They did not see the conductor and he did not see them. The children stopped at the foot of the six steps leading to the track level. The foot path was used by children going to and returning from school, and pedestrians generally. The engine was about ten cars east of the foot path. Donald Shea, Jr., stated that he was going to crawl under the train. His sister and some of the other children warned him against doing so. He had traveled over this path the previous school year and observed trains there. He had attended some safety classes in school. He proceeded up the steps and crawled under the freight car, looking back once and then continuing. The train started to move. The conductor had traveled about three car lengths to the east when he heard the children scream. He signaled for the train to stop and the brakeman, who was farther east, pulled the air brake, stopping the train. The conductor and brakeman removed the boy from under the car where he had been injured.

At the close of the testimony, defendants moved for a directed verdict and objected to questions being submitted to the jury covering negligence of defendant, which motion and objections were overruled. The jury found the defendant causally negligent in (1) failing to keep a diligent lookoutfor persons who might be on the railroad tracks at the public crossing in question and (2) in respect to giving such persons timely warning to get off the tracks and avoid danger; and found the plaintiff Donald Shea, Jr., causally negligent in going into a place of danger, and apportioned the contributing negligence 40% to the plaintiff and 60% to the defendant. After motions, the court ordered judgment on the verdict.

Bender, Trump & McIntyre, of Milwaukee, for appellants.

Ramsdell, King & Linderman, of Eau Claire, for respondents.

BARLOW, Justice.

Respondents contend that the question in this case is whether there is...