Whalen v. Chi. & N. W. Ry. Co.

• Decision Date: 25 February 1890
• Citation: 75 Wis. 654,44 N.W. 849
• Court: Wisconsin Supreme Court
• Parties: WHALEN v. CHICAGO & N. W. RY. CO.

75 Wis. 654

44 N.W. 849

WHALEN

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Feb. 25, 1890.

Appeal from circuit court, Marinette county.

The plaintiff, a minor, brought this action, by his guardian ad litem, to recover damages for personal injuries received by him while walking upon one of the tracks of the defendant company, on its depot grounds at Marinette, on the evening of August 31, 1888, caused by his being run against by a car of the defendant moving on such track. He alleges the negligence of the defendant as the ground of his action.

Some description of such depot grounds, and the tracks thereon, is essential to an understanding of the case. The main track of the railroad runs from the passenger depot in Marinette, in a southerly direction. About 80 rods south of the depot, it passes a water-tank, and about 283 feet south of the tank it reaches certain coalsheds, 224 feet long. These structures are on the east side of the track. One hundred and eighty-eight feet north of the tank, towards the depot, a switch connects the main track with the north e d of a side track, which extends south, parallel to the main track, on the west side thereof, and about 8 feet distant therefrom, 93 rods, or about 50 rods south of the south end of the coal-sheds, where it again connects with the main track. This is called the “scale track,” because scales for weighing cars are located therein, 176 feet north of the north end of the coal-shed. The grade of these tracks descends slightly to the north. North of the above-mentioned switch, about 76 feet, there is another switch, connecting the main track with what is called the “Menekaunee Branch,” which is a track on the east side of the main line, running in a north-east direction. At the time of the accident, and before, there were 60 or more dwelling-houses in the vicinity of the coal-sheds; and the persons residing therein, and others, had been constantly accustomed, for nearly 20 years before 1888, to use such depot grounds and tracks as a foot-way to and from the city of Marinette, which is understood to be east of the depot, without any objection by the defendant. Plaintiff resided with his parents near the coal-sheds, and when injured was on his way from the depot to his home. He had lived there two years or more. It is conceded by the defendant that those people, including the plaintiff, and the public were licensees upon those grounds and tracks, by force of long user of them for that purpose without objection by the defendant.

On the evening the plaintiff was injured, defendant's freight train No. 16, consisting of 32 or 33 cars, passed the Marinette depot, from the north, about 6:45. It did not stop at the depot, but ran south beyond the south switch of the scale track, and backed north on that track. There were standing upon that track, in the vicinity of the coal-sheds, eight or nine loaded cars, coupled together, to be taken south by such train. Defendant's passenger train No. 2 reached the Marinette depot the same evening at 6:55, stopping 20 minutes for supper, and to take water and coal. The engine and tender of that train were uncoupled therefrom at the depot, and ran south on the main track to the tank where water was taken, and from thence to the coal-sheds for coal. The testimony tends to show that the conductor of the freight train No. 16 left his train at the switches north of the water-tank, and, after the passenger engine had passed to go to the tank and coal-sheds, he threw open those switches; thus connecting the scale track and the Menekaunee track. This was done for the purpose of running the eight or nine cars standing on the scale track onto the Menekaunee track, so that, by running the engine around on the main track, it could take up these cars, return the same way with them, and couple them to the balance of the train. This would make up the train with those cars next the engine, where it was desired to have them. After the conductor of No. 16 had opened the switches as above stated, he signaled his train, which had been coupled to the eight or nine cars, and was standing still, to back north; and he walked up the track, south, to meet it. He met it at the scales, or a little north of that point, and climbed to the top of the first car. The train was moving slowly. He found a brakeman, about the middle of the eight or nine cars, loosening the brakes thereon. He directed the brakeman to go down, and uncouple those cars from the caboose, which was at the rear of the original train, and he did so. The engine was then stopped, and the eight or nine cars descended the grade by their own momentum, run upon the Menekaunee track, and were there stopped by the conductor, who immediately returned, and closed the switches. The passenger train then went south, immediately after which the freight conductor made up his train in the manner above indicated, and it also proceeded south.

The testimony also tends to show that the plaintiff was injured under the following circumstances: As already stated, he was going, when injured, from the depot to his home, near the coal-sheds. This was about 7 o'clock in the evening, and about one-half hour after sunset. It was dusk, but not dark. The lights upon the train were burning, and the conductor and brakemen were using lighted lanterns. The plaintiff passed up the main track, south, beyond the water-tank. The engine of the passenger train was then at the water-tank or came there about that time. When he had gone nearly half-way from the water-tank to the coal-sheds, the engine left the tank, and moved towards the sheds. He then left the main track, passed obliquely to the scale track, and walked south, up that track, between the rails. He saw the eight or nine cars on the track ahead of him, but thought they were standing still, and was not aware that the train to which they had been attached, was being backed down the track towards him. The engine on the main track passed him, making considerable noise. He turned his head to look at it, and continued to move on the side track in that position. After going in that manner probably 100 feet or more, without again looking south, he was struck by the rear car of the train. His foot was crushed, and afterwards amputated. It is probable that the cars on the side track had been thus moved north, about the same distance the plaintiff walked south on that track, before he was injured. The accident occurred a little north of the north end of the coal-sheds, and at about the time, or just after, the passenger engine reached the sheds. It also must have occurred before the conductor went upon the train, and probably while the brakeman was loosening the brakes on the more southerly of the eight or nine cars taken up on the side track.

The foregoing is believed to be a sufficient statement of the location of the tracks, the manner in which the trains were operated, and the circumstances of the injury complained of. The testimony also tends to show that the trains, on the day of the accident, were operated in the manner in which they had usually been operated for some time previously. It also tends to show that the plaintiff was...