87 Wis. 195 | Wis. | 1894
Lead Opinion
1. The plaintiff’s contention was that the defendant had been guilty of negligence in running its train at a dangerous and unlawful rate of speed, and in not keeping a proper outlook, and for failure to give timely warning of the approach of the train. It was error, we think, to admit the testimony of the witnesses Weed and Oleson to the effect that for a few days after the accident the defendant ran its trains over the trestle quite slowly, and afterwards ran them at its former alleged dangerous rate of speed of thirty or thirty-five miles an hour. The tendency of the testimony was to show, by implied admission, that the defendant habitually, down to the time of the accident, had been guilty of negligence in not using reasonable and ordinary care towards those who crossed the trestle, and towards the plaintiff’s intestate as well; that the conduct of the defendant after the accident was an implied admission of fault on its part, and it soon after, in disregard of its alleged duties, returned to its former dangerous if not reckless course of conduct. The question is the same in principle as in the case where an injury has been caused by defective machinery or an insufficient highway, and repairs have been made immediately or soon thereafter. A party may have exercised all the care which the law required, and yet, after an accident, he may think it well to use additional caution or safeguards; and it is unjust to hold that the fact that he had done so is an admission of previous negligence, or that his return to previous methods evinced a disposition bo persist in a negligent and dangerous course of conduct. Castello v. Landwehr, 28 Wis. 530; Lang v. Sanger, 76 Wis. 75; Morse v. M. & St. L. R. Co. 30 Minn. 465; Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 207; Skinners v. Proprietors of L. & C. 154 Mass. 168.
2. The question whether a party injured or killed on the
3. Walking upon the track of a railway has been held in many cases to be negligence per se, and sufficient to defeat a recovery in case of injury to the party by a passing train. Moore v. Penn. R. Co. 99 Pa. St. 301; Bresnahan v. M. C. R. Co. 49 Mich. 410; McClaren v. I. & V. R. Co. 83 Ind. 319; Harty v. Central R. Co. 42 N. Y. 468; Tennenbrock v.
It has frequently been held in this and other states that where the grounds of a railway are used by pedestrians for a considerable time without objection, or with acquiescence on the part of the company, a pedestrian crossing over the same thereby becomes a licensee, and is no longer to be considered as a mere trespasser acting at his peril, and that it is the duty of the company to exercise increased prudence and caution in operating its road at such point, and to keep a reasonably vigilant lookout to prevent injury or accident to those so crossing its grounds. Townley v. C., M. & St. P. R. Co. 53 Wis. 626; Whalen v. C. & N. W. R. Co. 75 Wis. 654; Davis v. C. & N. W. R. Co. 58 Wis. 646; Delaney v. M. & St. P. R. Co. 33 Wis. 67; Johnson v. L. S. T. & T. Co. 86 Wis. 64. In all these cases the injury occurred at the station or on the depot grounds or yard, where parties would naturally resort and cross over the same, and where the agents and servants of the company could exercise a proper degree of care and watchfulness under the circumstances; but we have not met with any case, in which the point was necessary to the decision, where it has been held that a license can be implied from such acts of frequent use by pedestrians or wayfarers of the main track or bridges or trestles distant from such places as a pathway for travel, though we find that in other states the rule of implied license has been applied to parties frequently crossing the track at particular points other than regular crossings. In the case of Hooker v. C., M. & St. P. R. Co. 76 Wis. 542, it was reasonably clear, and was so found, that the company was guilty of negligence that caused the accident; and it appeared that “from a point 1,168 feet north of the bridge on the west side of the track, at the height of an engine cab, the whole track could have been plainly seen southward through the bridge, and to
In the case of Mason v. M. P. R. Co. 27 Kan. 83, where the company had constructed a trestle or bridge over a creek and street on the plat of a city, and where the street had not been graded or improved, with a span of 160 feet over a stream sixty-five feet wide, and thirty feet above the water, and there were no railings to the trestle or bridge, and no foot planks on it, and the only way of crossing was by stepping from tie to tie, and the railway company was constantly using the track for the operation of its engines and cars, it was held that, in an action by a person injured while crossing the bridge by a collision with a hand car, no license could be implied from the custom of foot passengers to cross over the bridge, and evidence to show such user was held to have been properly stricken out. In Tennenbrock v. S. P. C. P. Co. 59 Cal. 269, in a similar case, it was held that one injured while walking over the bridge or trestle by a train was guilty of contributory negligence.
In the present case the defendant company had done .nothing to 'invite or induce the public to use this trestle for a footway. It was on the main track, over which at least twelve regular trains crossed each day, and there were occasionally special trains, and trains and switch engines besides passed over it from the Bay Front track to bring lumber upon the main line. It was impossible to meet or have a train pass one on the trestle without almost certain death, or the greatest possible injury to the pedestrian. It was not planked over in any part, and was so narrow as to
But the statute of the state has declared the public policy of the state upon this subject beyond cavil or dispute. It is provided by sec. 1811, R. S., that “ it shall not be lawful for any person, other than those connected with or employed upon the railroad, to walk along the track or tracks of any railroad, except when the same shall be laid along public roads or streets; provided, that this section shall not be construed to prevent any person from driving across any such roads from one part of his own land to another.” “ This legislation is justified,” it was held in McDonald v. C., M. & St. P. R. Co. 75 Wis. 128, in construing the previous clause of the same section, as “ not only being for the protection of the lives and property of those owning and engaged in the operation of the railroad, but also for the protection of the lives of those traveling upon it;” and a violation of the act was held to be contributory negligence. The consequence is that the plaintiff’s intestate was a trespasser and unlawfully upon- the trestle bridge at the time he came to his death. There could be no license that would be of any avail to allow him or others to walk over and along the track upon this bridge. The law forbids such use of the track, and makes the alleged implied license relied on nugatory and of no avail. Any other conclusion would entirely defeat the manifest
It follows from these views that the instructions of the circuit court in respect to the right of the plaintiff’s intestate to cross the trestle bridge, and the duty of the defendant towards him while crossing, were erroneous. Upon the case as made by the plaintiff, we think that the plaintiff’s intestate, at the time he was killed, was guilty of negligence contributing to the result. Comment on the facts is unnecessary. They speak for themselves. The evidence on the subject of contributory negligence is clear and decisive. For these reasons the judgment of the circuit court must be reversed.
By the Court.— The judgment of the circuit court is reversed, and the case is remanded for a new trial.
Dissenting Opinion
I respectfully dissent from the decision or intimation in this case that a person walking along a railroad track, and injured by a passing train, cannot set up and prove an implied license of the company for his walking in such a place, except where the track shall be laid along a public road or street. The statute (sec. 1811, R. S.) which makes it unlawful for any person to walk along the track of any railroad has been in force since 1872, and yet there have been in this court numerous cases since that time in which it is held that, notwithstanding that statute, a person so injured may set up an implied license of the company to show that he was not a trespasser. The last case in which it has been so held was that of Johnson v. L. S. T. & T. Co. 86 Wis. 64. The opinion was written by the same learned justice. The person injured was