33 Wis. 67 | Wis. | 1873
One of the main propositions relied on in support of the motion for a nonsuit, and which was embraced in the instructions asked on the part of the defendant, was to the effect that, inasmuch as the place where the plaintiff was injured was not a highway crossing, but the private grounds of the company, there could be no recovery unless the complaint alleged and the proof showed that the agents of the defendant were guilty of gross negligence in the running and management of the locomotive engine and tender. As applied to the facts established by the evidence, we think this proposition was not correct. It appears to us that there is no ground for holding that the plaintiff, on the facts shown, was a mere trespasser upon the private grounds of the company, and that the case must be considered in the same light as though he were such a trespasser. It is quite true that Lake street, as laid out for a public highway, did not extend beyond the railroad grounds on the south. But it was undeniably a public street down to those grounds, and there was really no way of entering that street from the south, except over the grounds of the company adjacent to it. Besides, as was observed by the counsel for the plaintiff on the argument, the evidence clearly shows that there had been a practical crossing over that place, into and from Lake street, by both the employees of the company, and citizens having occasion to go south, or coming from that direction, for a long time, and this passing backward and forward must
Then, passing from this point, and assuming, as we may do for the purpose of this appeal, that the' evidence fully justified the jury in finding that the servants of the defendant, in charge of the locomotive engine and tender, were guilty of negligence, either by running at a greater rate of speed than due regard to the safety of persons happening on the crossing would warrant, or by failing to ring the bell or give seasonable notice of their approach, the further important question arises, whether the evidence shows that the plaintiff was himself guilty of negligence which contributed to the injury of which he complains. If he was guilty of negligence directly contributing to the accident, then it is apparent the nonsuit should
We were referred on the argument to the case of the New Jersey R'y and Transportation Co. v. West, 3 Vroom, 91, as having a strong bearing upon the question before us. In that case the plaintiff was struck by one of two trains passing in opposite directions, while he was endeavoring to guard against injury from the other. Upon the point of contributory negligence, the court below was asked to charge, that the plaintiff, by being on the track when the train was passing, was prima fade guilty of negligence, which it declined to do. The supreme court approved of this ruling, remarking that the plaintiff was crossng the avenue for a proper purpose, and could not be held prima fade guilty of negligence merely because he happened to be on the track when the train passed. Mr. Justice Elmeb. further adds, that “ it appeared that he was carefully watching and keeping out of the way of the express train then in plain sight. Had not this or some similar occurrence interfered, he was undoubtedly bound, as was so strongly insisted on behalf of the defendants, to use his eyes and look both ways. But he was not bound to know that the trains would meet at this place and pass at such an improper speed, which it appears was not generally the fact. To require him to guard against such danger, under such circumstances, would be
It appears to us that the evidence in the case before us presents a much more satisfactory ground for saying that the plaintiff was guilty of negligence, than the facts of that case. If, under the circumstances, the inference of negligence was there doubtful, the conduct of the plaintiff does not leave room for any doubt upon the question. He was, according to his own statements, plainly guilty of negligence, and the court should have so decided on the motion for a nonsuit. He unnecessarily placed himself in a dangerous position, where he knew that locomotive engines were passing at all times from the track leading to the wood-yard upon that on which he stood, leading to the round-house, and he did not even look to the west, and took no precaution to ascertain whether an engine was approaching from that direction. It certainly seems to us that he was wanting in the exercise of ordinary care, and prudence, and that the court should have so decided as a matter of law.
For these reasons the judgment of the circuit court must be reversed, and a new trial ordered.
By the Court. — So ordered.
A motion for a rehearing was denied at the June term, 1873.