Fay v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

131 Wis. 639 | Wis. | 1907

Wiiíslow, J.

A number of errors are assigned, but they all involve the same proposition, namely, that a verdict for the defendant should have been directed because (1) the horse was frightened at one of the usual noises arising in the course of tlie operation of a railway, and (2) because.the plaintiff was guilty of contributory negligence in attempting to cross in front of the engine. Neither contention can be sustained. The negligence alleged in the complaint was that the engine was left in the highway for an unreasonable length of time while under a full head of steam, and the jury found that it was so left and that such leaving constituted negligence which proximately caused the injury. It is true that it appeared that the horse jumped and ran because of the sudden opening of the pop valve and the consequent escape of steam, and that this is one of the usual incidents of the movement of locomotive engines upon railways. Had this occurred while the engine was being operated in the ordinary transaction of railway business there would doubtless be no liability. Cahoon v. C. & N. W. R. Co. 85 Wis. 570, 55 N. W. 900; Crowley v. C., St. P., M. & O. R. Co. 122 Wis. 287, 99 N. W. 1016. But the engine was found to be partially upon the public street when the valve opened. The railway company had a right to use the street for legitimate railway purposes, but it had no right to leave its' engine or cars standing upon the street for an unnecessary and unreasonable length of time in such condition as to unnecessarily endanger the safety of travelers thereon. Bussian v. M., L. S. & W. R. Co. 56 Wis. 325, 14 N. W. 452. This was the act which was claimed and found to be an act of negligence proximately causing the injury. The opening of the valve and' the escape of steam was but an incident. It was a thing shown to be likely to happen when the engine is allowed to stand still for a time under a full head of steam. The likelihood that it would happen while the engine was occupying a part of the street and teams were passing was a matter legitimately bearing on the question whether the act of allowing the engine to stand on the street was negligent. The primal act-of negligence, however, was logically the unnecessary use of the street as a mere "standing place for the engine while it was steamed up and in such a condition that tbe opening of tbe pop valve and tbe increased probability of tbe frightening of borses was naturally to be expected. In tbe Crowley Case, above cited, wbicb is somewhat relied upon by appellant, no such ground of liability was pleaded, and for this reason tbe question here presented was not deemed to be in tbe case.

As to tbe alleged contributory negligence, we cannot say that it is contributory negligence as matter of law for a person to attempt to cross in front of a locomotive standing still as tbe plaintiff did in this case. It was properly a question for tbe jury. Bussian v. M., L. S. & W. R. Co., supra; Heer v. Warren-Scharf A. P. Co. 118 Wis. 57, 94 N. W. 789.

By the Court. — Judgment affirmed.