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

• Decision Date: 08 February 1927
• Citation: 192 Wis. 231,212 N.W. 273
• Parties: SORENSON v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

192 Wis. 231

212 N.W. 273

SORENSON

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

Supreme Court of Wisconsin.

Feb. 8, 1927.

Appeal from Circuit Court, Juneau County; Emery W. Crosby, Judge.

Action by Clarence Sorenson against the Chicago, Milwaukee & St. Paul Railway Company. Judgment of dismissal, and plaintiff appeals. Affirmed.--[By Editorial Staff.]

Crownhart, J., dissenting in part.

Action to recover for personal injuries, sustained by Clarence Sorenson while walking upon the right of way of the Chicago, Milwaukee & St. Paul Railway Company. From a judgment dismissing the action, Clarence Sorenson appeals.

Two months prior to the time when appellant was injured, a severe sleet storm had broken down the poles and wires carrying the electric current that operated the automatic signal system of the defendant company. Temporary repairs had been made, but permanent repairs were not completed at the time of injury. While walking along the railroad right of way, the plaintiff was thrown to the ground by a severe electric shock from current conveyed by a wire which had been broken by the storm and become charged with electricity of a high voltage by contact with a high tension wire. Appellant was severely burned, and an amputation of his right hand became necessary.

The appellant and his elder brother and sister and the children of one other family had been accustomed to go to and from school by walking either upon the tracks of the defendant company, or upon the embankment beside the tracks, or along the right of way off the embankment upon which the rails were placed. Occasionally, other persons had walked along the tracks or right of way. But, outside of two years when a school teacher walked along the right of way, the proof fails to establish any other regular use of the right of way by pedestrians. There was no evidence that travel was confined to any well-beaten or well-defined path. Those who walked along the right of way often walked between the rails. The foreman in charge of this section of the railway occasionally saw the school children walking along the right of way, but did nothing to prevent them from so doing. The railway company had given no warning or placed any signs along the right of way, forbidding its use by pedestrians.Richmond, Jackman, Wilkie & Toebaas and Frank Jenks, all of Madison, for appellant.

H. J. Killilea and Rodger M. Trump, both of Milwaukee, and Frank Hanson, of Mauston, for respondent.

STEVENS, J.

The case presents the question whether appellant was a licensee or a frequenter, or whether he was a trespasser upon the defendant's right of way. If he was a trespasser, the railway company was under no obligation to make its right of way a safe place for employment, under chapter 101 of the Statutes, even if it could be held that a railway right of way distant from any station is at all times a place of employment, as defined in these statutes.

[1] Subdivision (2) of section 192.49 of the Statutes provides:

“It shall be unlawful for any person other than a licensee, or authorized newspaper reporters, or those connected with or employed upon the railroad, to walk, loiter or be upon or along the track or tracks of any railroad in this state.”

This statute expresses a clear legislative intent to prohibit the general public from traveling upon a railway right of way. The purpose of this statute was to curtail the appalling loss of life that results from the use of railway tracks by pedestrians. The statute has for its purpose not only the protection of the lives of pedestrians, but also the lives of those who operate railway trains and of those who are passengers on such trains. European countries conserve human life by keeping the public off the rights of way of railways. America, by the abolition of grade crossings and the prohibition of the use of railway rights of way by pedestrians, is endeavoring to profit by the example of European nations. This law should be construed so as to permit it to accomplish its benevolent purpose, rather than to give it a construction that will lead to the sacrifice of human life, even if it may seem to work a hardship to the individual pedestrian who is injured while upon the railway right of way.

The first expression of the legislative will upon this subject is found in section 31 of chapter 119, Laws of 1872, which provided:

“It shall not be lawful for any person other than those connected with or employed upon the railroad, to walk along the track or tracks of any railroad, except when the same shall be laid along public roads or streets.”

Appellant was upon the right of way, at the time of injury, solely for his own convenience. He came within none of the exceptions of subdivision (2) of section 192.49 of the Statutes. Unless he was a licensee, he was on the right of way in violation of the express prohibition of the Legislature and was subject to the punishment prescribed by this section. If appellant was lawfully upon the right of way at the time of the injury, it was because he and others had violated this statute so often and so persistently that it must be assumed that the railway company tacitly licensed such use of its right of way by pedestrians. Were the question now...