Stuettgen v. Wis. Cent. R. Co.

• Citation: 80 Wis. 498,50 N.W. 407
• Parties: STUETTGEN v. WISCONSIN CENT. R. CO.
• Decision Date: 17 November 1891
• Court: United States State Supreme Court of Wisconsin

80 Wis. 498

50 N.W. 407

STUETTGEN

v.WISCONSIN CENT. R. CO.

Supreme Court of Wisconsin.

Nov. 17, 1891.

Appeal from circuit court, Washington county; A. SCOTT SLOAN, Judge. Affirmed.

Action by Henry Stuettgen, administrator, against the Wisconsin Central Railroad Company, to recover damage for the negligent killing of plaintiff's son. Trial was had to a jury, and a special verdict for plaintiff, with damages at $4,000. By consent of plaintiff one-half of the damage was remitted, and judgment entered for $2,000 and costs, from which and a denial of a motion for a new trial defendant appeals.Howard Morris, ( Thos. H. Gill, of counsel,) for appellant.

J. E. Wildish, for respondent.

ORTON, J.

This action is brought to recover damages against the defendant company for the negligent killing of the plaintiff's son, about two years of age, on its track. The defendant's negligence is predicated upon an alleged defective gate in its right-of-way fence, through which the child strayed. The accident occurred about 5 o'clock in the afternoon of July 20, 1889. The plaintiff and his family lived in a rented house on the farm of one Neuberg, through which the defendant's track ran north and south, about 20 rods east of the track, and about 2 1/2 miles north of Colgate, in Washington county. There was a wagon road from the highway, which ran east and west, and south of the house, past the house, in a northerly direction, to a barn, and thence curved towards the east to a gate in the right-of-way fence. There was a pig-pen just north of the house and between them there was a fence with a gate. A few minutes before the train came along the child was with the plaintiff, his father, at the pig-pen, where the father worked a very short time, and then went through the gate to the house, to get a hammer and some nails, and the child followed him to the house, and then was seen by one witness running down the wagon road towards the gate at the side of the right of way, and about five minutes afterwards the child was killed by the passenger train, a short distance south of the gate. The ground between the house and railroad was an open field, but the road was fenced on both sides. The gate through which the child passed to the track was a common shove-gate in a wire fence. It was placed there by Mr. Neuberg, the owner of the farm. When closed, there was an open space left at the south end, about 20 inches wide at the ground, and wider above, through which a man could pass. Neuberg had stopped up this open space with ties, but about five or six weeks before the accident the ties were taken away by the sectionmen of the company, and the space left open. After they were taken away, Neuberg notified the sectionmen to repair the hole or space, and the plaintiff notified one of the sectionmen to repair it about two months before the accident, and about a week or ten days before he told the section boss that he had asked the sectionmen to repair the gate, and asked him to give him, the father, the privilege of repairing it, as an accident might happen. The section boss told him to keep his hands off, as he was there to attend to the railroad fence, and would do so.

The jury found the following special verdict:“ First. When the gate at the farm crossing was closed as far as it could be, the opening at the south end was twenty and one-half inches wide. Second. The said opening had existed at least two months before the accident. Third. The defendant company had knowledge of said opening for a sufficient time before the accident to have fixed it. Fourth. The gate was closed as far as it could be at the time of the accident. Fifth. The child passed through the opening of the gate in going upon the track. Sixth. The sectionmen, Smith and Moss, did not close the gate after the accident. Seventh. The plaintiff was not guilty of any negligence which contributed to the accident. Eighth. The plaintiff has sustained damage of $4,000 by reason of the accident.”

It is obvious that the most material question of fact in the case was whether the child passed through the open space at the south end of the gate when the gate was closed. If the gate was open at the time, then the company was not negligent. It would then be a reasonable presumption that the child passed through the open gate, and not through the open space at the end. Was the gate open or closed? Two witnesses, Smith and Moss, sectionmen of the company, testified that immediately after the train started on its way they went to the gate, and found it open about three feet, and they closed it. Two witnesses of the plaintiff. Neuberg and his son, testified that they passed through the gate, about noon on that day, and...