156 Wis. 477 | Wis. | 1914
The deceased, a farmer forty-two years of .age, drove to the village of Westfield, a distance of two or three miles, with a span of horses and sleigh in the afternoon of January 16, 1912, delivered some farm produce to a married sister who resided on the outskirts, and then drove to the business part of the village. Between 5 and 6 in the evening deceased was in a saloon with his brother, had drank some, and started for home about 6 o’clock or shortly before. The night was dark, cold, and stormy. He started driving his team in the direction of his home, got onto the defendant’s railroad track at a point where it was not fenced, continued on the track for some distance to a trestle, where the team was struck by a north-bound passenger train and the team and deceased were killed. The main contention of appellant is that upon the evidence produced the plaintiff cannot recover. The evidence tends to show that on the evening in question, when the deceased started for home, he was under the influence of liquor, but apparently able to manage his team; that the team, or one of the horses, was spirited and easily frightened at flashes of light or unusual noise and likely to take fright and run. The deceased after starting for home drove to Main street, turned and drove two blocks to the street connecting with his home road, turned at this street and drove across a bridge to the railway track, which he crossed. At the time he reached the railway track the electric light was turned on, which sputtered considerably. This electric light was located at a point near where the team of deceased turned from the main road onto a vacant strip of land lying adjacent to and west of the defendant’s right of way and extended southerly about 1,000 feet from Lawrence
Tbe learned counsel for appellant relies upon McDonald v. C., M. & St. P. R. Co. 75 Wis. 121, 43 N. W. 744, and tbe trial judge below favors us with a very able opinion, wbicb is in tbe record, in wbicb be finds some facts in addition to those found by tbe jury, and concludes, first, that
The trial judge found:
“Whatever the fact may have been in the McDonald Case, and whatever inference of ultimate fact the court may have drawn from the evidentiary facts of that case, I am satisfied that the deceased in this case did not wilfully or intentionally enter upon the defendant’s right of way, and that he did not purposely or avoidably remain or drive thereon; that he was not guilty of wilful misconduct; that he was not guilty of gross negligence in fact or as matter of law under sec. 1811; that he was intoxicated to a considerable extent and was guilty of a high degree of negligence that contributed proximately to his death; but I think that this constituted contributory negligence and nothing more. From this I conclude that the motion for judgment for the plaintiff should be granted.”
The jury found that the death of the deceased was occasioned in whole or in part by the want of a fence at the place where the team entered upon the property of defendant. Sec. 1810, Stats., imposes absolute liability upon railroad corporations for injury on account of failure to fence their roads (except depot grounds), “occasioned in any manner, in whole or in part, by the want of such fence.” Atkinson v. C. & N. W. R. Co. 119 Wis. 176, 96 N. W. 529. Under this statute, if the want of a fence contributes in any manner to cause the injury the defendant is liable. The ordinary rules relative to proximate cause are not applicable. Atkinson v. C. & N. W. R. Co., supra. Nor under the statute is contributory negligence a defense in cases where the injury
Construing the evidence most favorably to the defendant, if the deceased got upon the track and continued thereon by inadvertence, under such circumstances, under the repeated decisions of this court, he was not guilty of gross negligence. Willard v. C. & N. W. R. Co. 150 Wis. 234, 136 N. W. 646; Jorgenson v. C. & N. W. R. Co. 153 Wis. 108, 140 N. W. 1088; Barlow v. Foster, 149 Wis. 613, 136 N. W. 822; Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 84 N. W. 446; Haverlund v. C., St. P., M. & O. R. Co. 143 Wis. 415, 128 N. W. 273.
In Tunnison v. C., M. & St. P. R. Co. 150 Wis. 496, 137 N. W. 781, the court found that the plaintiff was violating
The learned counsel for appellant argues with much force that McDonald v. C., M. & St. P. R. Co. 75 Wis. 121, 43 N. W. 744, controls this case, but conceding, without deciding, that that case was decided rightly, there are many points of difference between it and the instant case. The court in the opinion appears to hold that, while there may not have been any negligence on the part of the deceased in getting upon the track, the evidence shows that he continued to travel for a long distance upon the track after becoming conscious that he was upon it, and that it appears there was no difficulty in getting off the track. It therefore appears from the opinion in the McDonald Case that the deceased intentionally con-
It is also insisted by appellant that there was a highway crossing at the point where deceased got upon the right of way. This contention is not supported by the evidence. It seems that Mr. Wilson, a resident on the east side of the right of way, and perhaps others, were in the habit of crossing the track, but it does not appear that there was any regular crossing. Moreover, the right of way on the west side was unfenced for a distance of about 1,000 feet southerly from Lawrence road, and the evidence is ample to sustain a finding that the team got upon the track because of such unfenced condition. Clearly the evidence does not show that there was any such crossing at or near the point in question which would excuse the defendant from building and maintaining a fence.
Counsel further contends that the place where the team entered upon the right of way was depot grounds. The jury found to the contrary, and we think this finding is supported by the evidence and that the question was one for the jury.
Some other points are discussed by counsel for appellant respecting the constitutionality of sec. 1810, Stats., and its alleged conflict with federal legislation. We do not regard the contentions under this head tenable. We think the case was fairly tried and no prejudicial error committed, therefore the judgment should be affirmed.
By the Court. — Judgment affirmed.