Barron v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

| Wis. | Dec 11, 1894

WiNslow, J.

Tbe claim tbat tbe accident to tbe plaintiff was in any respect tbe result of tbe manner of construction of tbe bridge across tbe street was properly eliminated from, tbe case by tbe circuit judge. Tbe statute provides (B. S. sec. 1837) tbat, whenever it shall be necessary to construct a bridge over any street, it shall be sufficient to construct tbe same so as to give a clear passageway of twenty feet, or two passageways of fourteen feet each. Under tbe bridge in question were three passageways,— one of twelve feet, one of thirteen feet nine inches, and one of fourteen feet five inches in width. Conceding tbat there might be actionable negligence claimed, bad tbe plaintiff been injured in attempting to pass through either of tbe passageways which were less than fourteen feet in width, it is very clear tbat, when it appeared tbat tbe accident occurred in tbe passageway which was more than fourteen feet wide, it could not be claimed that the fact that the adjoining passageway was three inches less than fourteen feet in width was, in any legal sense, a direct or efficient cause of the injury.

The other grounds of negligence claimed were the excessive speed of the engine and the failure to give any signal before reaching the bridgé. The jury negatived the contention that no signal was given, and found affirmatively that the whistle was sounded three times before reaching the bridge,— the last time being within 150 feet of the bridge,— and they further found that the accident was caused by the sounding of the whistle and the failure to ring the bell. Certainly, this seems like a very anomalous finding, and it places the plaintiff in a very singular, not to say ridiculous,, position. She brought her action, claiming that no signal was given and that this omission was one of the efficient causes of her injury; and the jury find that a signal was'given', and that it was the cause, 'or one of the causes, of the injury. It is now seriously argued in this court, on behalf of the plaintiff, that a liability is established by this finding. In other words, the plaintiff’s position is that the defendant is liable if the whistle did not sound, because it did not, sound, and it is equally liable if the whistle did sound, because it did sound. It is sufficient to say that no liability can be based on the fact of the sounding of the whistle, even if the horse was frightened thereby, because no such issue or claim was made or tried, and further because it was not, proven or found that the whistle was negligently or recklessly sounded, and in the absence of this fact it is not a basis of liability.

There remain but two claims of negligence, namely, that, the bell was not rung after passing the switch, and that the speed was excessive. This court held in Jenson v. C., St. P., M. & O. R. Co. 86 Wis. 589" court="Wis." date_filed="1893-12-29" href="https://app.midpage.ai/document/jenson-v-chicago-st-paul-minneapolis--omaha-railway-co-8184442?utm_source=webapp" opinion_id="8184442">86 Wis. 589, substantially, that the statutory requirements as to speed and signals applied only to grade crossings, and not to bridge crossings. We are strongly urged, in this case, to reverse this ruling. We are aware that contrary views are held by some courts, but we shall not review the authorities. That decision was reached after full argument and due deliberation, and the reasons for it are given in the opinion in that case, and we do not feel that it should be reversed. Applying that rule to this case, it will be readily seen that the defendant was entitled to judgment upon the facts proven, and it will also be seen that the errors claimed in the admission of testimony and other rulings of the court are immaterial.

By the Gourt.— Judgment affirmed.