58 Wis. 30 | Wis. | 1883
Lead Opinion
We agree with the learned counsel for the defendant that no question of judicial discretion is here involved. The only question presented by this appeal is, Was or was not the nonsuit properly granted ? If it was, the order setting it aside and granting a new trial is erroneous and should he reversed; if it was not, the order should be affirmed. Unless it was conclusive^7 proved, either that the defendant was not guilty of any negligence which caused the injury complained of, of that the plaintiff himself was guilty of negligence which contributed thereto, the nonsuit should not have been ordered. The question to be determined is, Were ■either of these propositions so established ?
On the one hand, the failure of the defendant to place a light upon the forward gravel car, to indicate the presence •of the gravel cars ahead of the locomotive, is alleged as negligence of the defendant. On the other hand, it is claimed that the head-light of the locomotive rendered those cars visible to persons at the street crossing, and that had the plaintiff used proper care when he saw the head-light he would have seen the gravel cars in advance of the locomotive. Had the locomotive been at the head of the moving train, it Avill
On the other hand, it is not unlawful for railway companies to propel cars by pushing them in advance of the locomotive by which they are propelled when the exigencies of their business require it to be done: If they do so under circumstances which increase the risks of injury to persons or property, the law places them under obligation to.give timely and suitable notice or warning, in some manner, of what they are doing. In this case it does not appear that the gravel cars could be distinguished or their presence discovered by persons at the street crossing, when the plaintiff attempted to cross the track, unless by aid of the head-light.
All of the witnesses who testify on the subject say that they saw the head-light of the locomotive, but did not see the gravel cars which preceded it until the moment the-plaintiff was struck. The gravel upon the cars probably gave to them, to some extent, the color or appearance of the road-bed; and this might have interfered with seeing the cars from the crossing readily. Besides, it is testified that the glare of the light had a tendency to obscure the vision of persons at that point. There was no structure' upon the platforms of the cars to arrest observation. There-is no evidence of the height of the head-light from the ground or from the top of the gravel on the cars. We merely know from the evidence that there was- a head-light ■ on the locomotive plainly visible from the crossing, and that all of the witnesses who testify they saw it when the train was approaching the crossing, state that they did not see. the gravel cars.
We fail to find in this testimony, or in any of the testimony, anything which will authorize us to hold it conclusively proved that the head-light was sufficient to enable the plaintiff, had he exercised reasonable and proper care and scrutiny, to see the gravel cars and thus become aware of the peril of crossing the track when he attempted to do so. Whether the head-light was sufficient for that purpose is a
It follows that the nonsuit was improperly ordered, and that the circuit court properly vacated it and ordered a new trial.
Dissenting Opinion
I most respectfully dissent from the opinion in this case.
1. The boy had no business with the company, or at its depot, or on its platform, and was there only as an idle spectator “ or for fun,” waiting to see the train come in, then to pass over the road towards his home.
2. The company owed no duty to the boy more than to any one passing over its road on his own business, at or near its depot or anywhere else on its line.
3. They were not bound to carry a light on the forward end of the gravel car they were engaged in switching near the depot, so far as this boy was concerned, and it was not negligence that they did not do so. Suppose this train and locomotive were pushing platform cars in front from one depot to another, and in the open country, distant from each, a man living in the vicinity attempted to “ beat ” the train when the head-light pf the engine was -within less than one hundred feet of him, and to cross over, and he did not see the flat cars in front, and was struck by the forward one when he had taken one step on the track, as in this case,
4. The boy was grossly negligent and careless: (1) In attempting to cross the track before an approaching train, even though the engine was at that moment nearly one hundred feet distant. It will not do to encourage such a dam gerous and adventurous experiment by holding that it was not carelessness. Can it be said, or ought it to be said, that such an act was common-prudence? And yet we have to say so by holding that it was not the want of it. Boys are too apt to take such dangerous chances to be encouraged by legal sanction. The fact that this boy might have safely crossed the track in this instance if the gravel cars had not been in front, is not the test of common prudence or the want of it. We do not know whether he could have safely crossed or not. He might have fallen or his foot might have been caught in a frog, which is very common, or in some other narrow place, or some other cause might have inter
I speak of the plaintiff as “ the boy,” but he was twenty years old, and of full judgment and capacity. He was certainly reckless and negligent, and ought not to recover. I think there have been many cases in this court where the plaintiff was less negligent and yet was not allowed to recover. I think the circuit court should not have set aside the nonsuit. The first impression of the learned judge was, in my opinion, correct. On the evidence given, the jury would not be justified in .rendering a verdict for the plaintiff, and if they should do so it would be the duty of the court to set it aside.
By the Gourt.— Order affirmed.