Sutton v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 11 January 1898
• Citation: 73 N.W. 993,98 Wis. 157
• Parties: SUTTON v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: Wisconsin Supreme Court

98 Wis. 157

73 N.W. 993

SUTTON

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

Supreme Court of Wisconsin.

Jan. 11, 1898.

Appeal from circuit court, Monroe county; O. B. Wyman, Judge.

Action by John J. Sutton against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

This is an action to recover the value of a team of horses killed by a collision with defendant's passenger train upon a country highway crossing about half a mile northwest of the city of Augusta, in Eau Claire county, on the 19th day of March, 1892. The highway in question runs directly east and west, and is a main road, traveled extensively. The railway track crosses the highway obliquely, from northwest to southwest, and the highway is slightly turnpiked up above the natural level of the ground at the crossing. On the day of the accident a young man named Humes was driving along this highway from west to east. He was driving a young team belonging to his father, hitched to a wagon with a long reach and without any box. He was riding upon the rear hounds of the wagon, or upon the rear bolster, and was leading behind a heavy team belonging to the plaintiff, which was hitched to a wagon with a wood rack thereon. The young man approached the crossing from the west at about noon, and, as he crossed the track, the rear team (being the plaintiff's team) was struck by the defendant's regular passenger train coming from the northwest, at a speed of 40 miles an hour, and, as a result of the collision, the team was killed, the rear wagon and harness destroyed, and the young man was instantly killed. The complaint alleged negligence on the part of the railway company in failing to restore the highway to its former state, and in failing to properly fence the same; also in running its train at a dangerously high rate of speed; also in failing to give the proper signal, by sounding the whistle or ringing the bell. The circuit judge charged the jury that there was no evidence that the train was running at an unlawful rate of speed, and that they could not find negligence because of the speed of the train, nor because of failure to fence, but submitted to the jury the other alleged grounds of negligence. A general verdict was returned for the plaintiff, fixing the damages at $508, and from judgment thereon the defendant appealed.L. K. Luse, for appellant.

J. J. Sutton, in pro. per.

WINSLOW, J. (after stating the facts).

The defendant claimed upon the trial below that the evidence failed to show any negligence upon its part in any of the ways claimed by the plaintiff, and the questions arising upon this broad claim are properly preserved by exceptions, for review upon this appeal. As stated in the statement of the case, negligence causing the injury was claimed by the plaintiff in four respects, viz.: (1) In running the train at a dangerously high rate of speed; (2) in failing to properly fence its right of way; (3) in failing to restore the highway to its former condition; and (4) in failing to give the proper signals.

1. The court finally took from the jury the question of the alleged negligent rate of speed of the train, and charged that the evidence did not show negligence in this respect. This was plainly right. The crossing was in the country, where there was no limitation, either by statute or ordinance, upon the speed of trains. Under such circumstances, it cannot be said that it is negligence to run a train at or about the speed of 40 miles per hour, or that negligence can be inferred from such fact alone. Mills & Le Clair Co. v. Chicago, St. P., M. & O. Ry. Co., 94 Wis. 336, 68 N. W. 996.

2. The court also charged that there could be no recovery upon the ground of failure to properly fence the right of way, and this was so clearly correct that we shall spend no time in discussing it, but simply say that there was no evidence tending to show that either a fence, or the absence of a fence, had anything to do with the accident.

3. The statute (Rev. St. § 1836) requires every railway company constructing its road across or upon any highway to restore such highway to its former state, or to such condition that its usefulness shall not be materially impaired. It has been held by this court that this provision applies only to cases where the railroad is built upon or across an already existing highway. Chicago, M. & St. P. Ry. Co. v. City of Milwaukee (present term) 72 N. W. 1118. In the present case it is claimed that there was no evidence to show that the highway in question was an existing highway at the time of the construction of the railroad, and hence that the statute above referred to had no application. Upon this point it is...