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

• Decision Date: 09 October 1888
• Citation: 72 Wis. 375,39 N.W. 856
• Parties: WINSTANLEY v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

72 Wis. 375

39 N.W. 856

WINSTANLEY

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

Supreme Court of Wisconsin.

October 9, 1888.

Appeal from circuit court, Winnebago county; GEORGE W. BURNELL, Judge.

Action by John Winstanley, administrator of Robert Winstanley, deceased, to recover for the death of intestate, alleged to have been caused by the negligence of defendant, the Chicago, Milwaukee & St. Paul Railway Company. Trial by jury, verdict for plaintiff, damages assessed at $1,500, and judgment thereon, from which defendant appeals.John W. Cary, Burton & Hanson, and Charles Barber, for appellant.

Weisbrod, Harshaw & Nevitt, ( Gabe Bouck, of counsel,) for respondent.

ORTON, J.

This action is to recover damages which the respondent sustained by the death of his son Robert, which was caused by the negligence of the appellant company, and the plaintiff recovered $1,500. The main facts were as follows: The railroad runs nearly north and south through that part of the city of Oshkosh, and there is a side or spur track which runs in the same direction, quite a long distance by, and to accommodate, several mills and manufacturing establishments. On the west side of said track there is a large building used for a glazing-shop, 120 feet long and 50 feet wide, with a platform running along the east side, 6 feet and 4 inches wide, and within 2 feet and 8 inches of the west rail of the spur track. There is also a platform of about the same width along the north end of said glazing-shop, and a door into the shop about the middle of the building, and steps at each end of this platform. Immediately in front of this platform there is, and has been for a long time, a road or private way, from a mill some distance west, across the spur track, and on towards High street east, and the crossing is built a little north of the platform, and very near the north-east corner of the glazing-shop. The spur track is used for hauling loaded cars south, about 7 o'clock in the morning, and running empty cars back over this road crossing, about 8 o'clock daily, with no more irregularity than may be caused by a longer time to unload the cars at some times than at others. It was about 8 o'clock when this death occurred, and an engine was pushing several empty box cars on the track towards the north. The deceased, a boy about 18 years of age, had been working with his father's team for one Martin, hauling loads from said mill west of the crossing, and on this morning, with another workman, had been to the mill for such purpose, and, not finding Martin, had returned and left his team standing about six feet from the north platform, and went into the glazing-shop to warm himself, and he and the other workman came out and got into his wagon, and drove towards the road crossing, about 26 feet distant, and on a walk, as the witnesses for the plaintiff testified. When his team came within about four feet of the rail at the crossing the deceased, from where he was sitting in his wagon, could have seen for the first time the north end of the first box car, if it had been within probably about 30 feet south of the crossing. Before reaching that point, nearly the whole track south, for a long distance, was hidden from his view by the glazing-shop and other buildings. When the team, with their heads probably turned a little to the left, had come nearly to the west rail of the track, with their heads a little beyond it, the north-west corner of the first box car came in contact with the collar of the off horse and caught behind it, and as it passed on wheeled the team around to the left, and pulled them along outside of the track about two rods, where the car became disengaged from the collar, and went on, and the horses stopped. When the team was thus suddenly turned about to the left, the deceased, either by the tilting of the wagon-box, or by the sudden stopping or turning of the wagon, or in some other way, was thrown forward under the car, and killed. From the manner in which the corner of the car caught the collar of the horse, the horse's head was probably turned somewhat towards the left. The corner of a car is some distance over and outside the rail of the track, and the forward feet of horses are about even with or a little behind the collar, and therefore the horses' feet had not yet come to the first rail of the track, although their heads may have been over it. The team cannot be said to have come onto the track, or to have hardly come up to the track. The wind was blowing strongly towards the south. The testimony on behalf of the plaintiff tended to show that no bell was rung or whistle blown on the train; that the train was running at the unlawful rate of speed of eight miles an hour; and that there was no sign near the crossing with the warning on it of “Look out for the cars,”--and the jury were warranted in finding that such were the facts.

The second and fifth errors relied upon by the learned counsel of the appellant are that “the court erred in refusing to instruct the jury that the appellant was under no obligations to sound a whistle for the crossing,” and in “overruling the appellant's objection to the following question: ‘Was there any sign up at the crossing of the road over this track in question?’ ‘Was there a sign, Look out for the cars?’ ” These alleged errors may be disposed of together, as being within the same reason, and resting upon the same general ground. The contention is that the law does not require the whistle to be blown or such a sign to be put up as an absolute duty, and therefore the negligence of the appellant cannot be predicated on its failure to do so. It may be true that there is no express provision of law requiring these things to be done in such a place, yet it may be a question for the jury whether such precautions ought not to have been taken at such a very dangerous crossing, like the duty of the company to keep a flag-man at certain crossings where the statute does not require it, but where there is an extraordinary liability of collision with those passing over them, as in Guggenheim v. Railroad Co., 33 N. W. Rep. 161, and in Hoye v. Railway Co., 67 Wis. 1, 29 N. W. Rep. 646, and like the duty to blow the whistle, as in Roberts v. Railway Co., 35 Wis. 679. The third error relied on is “the refusal of the court to instruct the jury that the speed of the train was not the proximate cause of the accident.” Why was the speed of the train, at the rate of two miles an hour faster than the law allowed, not the proximate cause of the accident, when, if it had not been for this excess of speed, the train would not have been near the crossing when the deceased attempted to pass over it, and the deceased would have passed over it with safety before the train would have arrived there at the lawful speed of six miles an hour? There could scarcely be a cause more proximate to the accident. If the deceased did not contribute to cause his own death by his culpable negligence it might be said that he was killed by this excess of speed. It was negligence in law to run that train more than six miles an hour in such a place, and this fault of the company cannot be extenuated by any view of the case. The fourth error complained of is the refusal of the court to give the eighth and ninth instructions asked by the appellant. Such instructions were that, “if you find that the deceased, Robert Winstanley, had he looked when his team was from four to six feet from the rail of the track, could have seen the approach of the cars...