Townley v. Chi., Milwaukee & St. Paul Ry. Co.

• Decision Date: 13 December 1881
• Citation: 11 N.W. 55,53 Wis. 626
• Parties: TOWNLEY, BY GUARDIAN AD LITEM, v. CHICAGO, MILWAUKEE & ST. PAUL RY. CO.
• Court: Wisconsin Supreme Court

53 Wis. 626

11 N.W. 55

TOWNLEY, BY GUARDIAN AD LITEM,

v.CHICAGO, MILWAUKEE & ST. PAUL RY. CO.

Supreme Court of Wisconsin.

Filed December 13, 1881.

Appeal from circuit court, Dane county.

This action is to recover damages for an injury resulting in the loss of a foot of the plaintiff, Rosa, caused by the alleged negligence of the defendant, March 10, 1879. At the time of the injury Rosa was seven years of age, and had, during the day, been attending the school of the sisters, on Washington avenue, leading directly from the capitol to the east end of the passenger depot of the Prairie du Chien division of the defendant's road. Rosa's home seems to have been some 40 or 50 rods west of the depot, and a little north of the defendant's track. Immediately south of the depot is the main track, and upon the north side of the depot there are four side tracks; the two nearest the depot running together about 240 feet west of the depot, and from thence on one track about 100 feet to the main track. The third and fourth tracks from the depot, known as the coal and lumber tracks, run together at the switch about 360 feet west of the depot, being at the place where Rosa was injured, and which, for convenience, is called “switch B,” and from thence on one track 64 feet to the main track, which, for convenience, is called “switch A.”

Along the north side of the north side track there is a traveled road or wagon track running from Washington avenue, near the east end of the depot, west across the end of Francis street, and thence west to the end of Lake street, on the west side of which Rosa lived. On leaving her school on the day in question, Rosa passed down the avenue across the side tracks on to the platform at the east end of the depot, and from thence along the platform on the south side of the depot west onto the walk or “switch path,” so called, between the main and side tracks west of the depot. While she was on the “switch path,” the freight train in question passed from east of the depot along the side track nearest the depot on the north, and from thence onto the main track, until the hind end of the hind car was about the distance of one and a half cars west of “switch A,” when the train stopped. There were eight freight cars in the train, the four in front being loaded, and the four in the rear being empty, and the brakeman and switchman were both on the train as it passed west, the former seeing and recognizing Rosa on the “switch path” as he passed by her.

Immediately after the train had passed, Rosa walked west along the “switch path” to the junction of the side track with the main track, and then, turning a little north ward, crossed the first side track, and then continued, in about the same direction, until she reached the junction of the coal and lumber tracks at or near “switch B,” and crossing the same, until she came to the north rail of the coal track, when her left foot got caught between that rail and the guard-rail, and from which she was unable to extricate it. “Switch A,” something over 64 feet west of her, being turned, and the train starting back, and the four rear cars being uncoupled, run onto the north side track, and from thence east to “switch B,” and there turned onto the coal track and crushed her foot being so caught. On the trial, the plaintiff having rested, the defendant moved for a nonsuit, which was granted, and from the judgment entered thereon this appeal is brought.

Sloan, Stevens & Morris, for appellant.

J. W. Cary, for respondent.

CASSODAY, J.

Was there an absence of negligence on the part of the defendant? There is evidence tending to show, in effect, that the yard-master saw Rosa standing still on the track at or near “switch B,” the place where she was caught, before the cars started back, and that he was, at the time, about 220 feet east of her, with the cars over 100 feet west of her, and that he, knowing she was in danger, hallooed to the train men at the time, and again when the cars got within about 60 feet of her, or opposite “switch A,” where the switchman stood; that she was on the same side of the track as the lever of “switch A;” that when the train stopped going west, with the rear end of the rear car some 50 feet west of “switch A,” the brakeman got down from the top of the cars and uncoupled the four rear cars, and then got upon the west end of the uncoupled car furthest from the little girl, and took hold of the brake at the west end of that car, with his face towards the west, and that in the mean time the switchman had got down from the top of the cars and passed to the lever of “switch A,” some 64 feet west of where the little girl was injured, and then turned that switch so as to send the four uncoupled cars onto the north side track, and thence onto the coal track at or near “switch B,” where the little girl was injured, and thereupon, and after looking to see if “switch B” was set so as to turn the loose cars onto the coal track, the switchman signalled the engineer of the train to back the same, which he did.

From portions of the testimony it seems to be a little uncertain whether the signal to back the train was before or after the switchman looked down the track to “switch B.” He does testify, in effect, that when he looked back--down the track--to “switch B,” he did not see the little girl; that she might have been on this side of the track, and he would not have noticed her, as he would be watching his switch,--the lumber-yard switch that goes onto the coal track; and that when he first saw her her hands were up and the end of the car within a half car length of her. The switchman also testified: “It is my duty to look up on that track to see if it is clear, and if it is perfectly safe for the cars to come back; that is what I am there for. And after I see that it is safe, I give the signal to back. It is my duty to see that the track is clear; that there is nobody on it. That is what I did this time.” With this measure of duty resting upon the servants of the defendant, at the time and place in question, we cannot hold, as a matter of law, upon the evidence in the case, that the defendant was free from negligence in committing the injury. If this little girl, seven years of age, was at or near “switch B,” with her foot caught between the rail and the guard, while the train was standing still, and it was his duty to see that the track was clear and nobody on it before giving the signal for the train to back, then certainly there was some evidence of failure of duty on his part in not discovering her and removing her from the track before giving the signal.

We do not wish to be understood as expressing any opinion on the facts, except that, on the question of defendant's negligence, there was evidence sufficient to go to the jury. Whether the little girl was in fact on the track at the time of turning the switch or giving the signal, or whether the switchman ought to have seen her before giving the signal, or immediately after, and then given the alarm sooner than he did, or have rescued her by his own efforts, or whether the yard-master should have gone to her relief when he first saw she was in danger, or whether the brakeman acted with all the circumspection which his duty required, were, in our opinion, all questions peculiarly within the province of the jury.

In Ireland v. Plank-road Co. 13 N. Y. 533,Johnson, J., said: “It by no means necessarily follows, because there is no conflict in the testimony, that the court is to decide the issue between the parties as a question of law. The fact of negligence is very seldom established by such direct and positive evidence that it can be taken from the consideration of the jury and pronounced upon as a matter of law. On the contrary, it is almost always to be deduced as an inference of fact from several facts and circumstances disclosed by the testimony, after their connection and relation to the matter in issue have been traced, and their weight and force considered. In such cases the inference cannot be made without the intervention of a jury, although all the witnesses agree in their statements, or there be but one statement, which is consistent throughout.”

“Generally, what is and what is not negligence is a question for the jury. When the standard of duty is a shifting one, a jury must determine what it is, as well as find whether it has been complied with.” Pennsylvania R. Co. v. Barnett, 59 Pa. St. 263.

“Negligence, in one sense, is a quality attaching to acts dependent upon and arising out of the duties and relations of the parties concerned, and is as much a fact to be found by the jury as the alleged acts to which it...