Haecker v. Chicago, Milwaukee & St. Paul Railway Co.

194 Wis. 358 | Wis. | 1927

Stevens, J.

The questions presented by the appellants all turn upon the duty of the railway company to give warning of the fact that its cars were approaching the path traveled by pedestrians who cross its yards.

The evidence abundantly supports the finding of the jury as to the existence of a foot-path at the place of injury and as to the knowledge on the part of the railway employees that this path was commonly used by pedestrians. One of the switchmen in charge of the movement of the cars that caused the death of the girl testified that he had seen as high as five or six hundred men walk through the railroad yards at this point.

The deceased girl was very clearly a licensee, not a trespasser, under the unbroken line of decisions of this court. She was therefore expressly exempt from the provisions of sub. (2) of sec. 192.49 of the Statutes. She was in a railroad yard and not upon the right of way in the open country as was the case in Sorenson v. C., M. & St. P. R. Co. 192 Wis. 231, 212 N. W. 273, 522.

The rights of the respective parties must be determined in the light of the duty of a railway company to provide a careful lookout in the direction in which its cars are moving in places where its employees know that people, and especially children, are apt to be upon the track. Whalen v. C. & N. W. R. Co. 75 Wis. 654, 661, 662, 44 N. W. 849; Johnson v. Lake Superior T. & T. Co. 86 Wis. 64, 70, 56 N. W. 161; Townley v. C., M. & St. P. R. Co. 53 Wis. 626, 634, 11 N. W. 55.

In none of the cases cited by appellants did the court determine that such a case as the one at bar presented a question for the court and not for the jury. In the Whalen Case and the Johnson Case the question of the liability of the railroad was submitted to the jury and there was a verdict for the plaintiff. The question presented in each of those cases was whether the court had given proper instructions as to the duty of the railway company to maintain a lookout.

In Townley v. C., M. & St. P. R. Co. 53 Wis. 626, 632, 11 N. W. 55, and Mason v. C., St. P., M. & O. R. Co. 89 Wis. 151, 156, 61 N. W. 300, it was held that the trial court erred in granting a nonsuit, and that the question whether the defendant company was guilty of negligence in failing to maintain a proper lookout, under circumstances very similar to those here in question, was an issue for the jury and not for the court. “It was clearly a question for the jury in the present case to decide whether the trainmen ought, in the exercise of due care, to have anticipated that a child might be present on the track, . . . and, if so, whether some greater degree of care should have been exercised in giving warning, ... or some greater precaution taken to guard against such an accident.” Carmer v. C., St. P., M. & O. R. Co. 95 Wis. 513, 517, 70 N. W. 560.

We conclude that the question of defendant’s negligence in failing to maintain a lookout or to give other warning of the approach of the cars was an issue for the jury, whose verdict would finally dispose of this case were it not for an error of the court in refusing to give the following instruction requested by the plaintiffs: “The defendant company owed licensees the duty to keep af diligent lookout for such as might be upon the tracks and to give them timely warning to get off the track and avoid danger.”

This instruction is a correct statement of the duty of the railway company under the circumstances of the case at bar. Whalen v. C. & N. W. R. Co. 75 Wis. 654, 659, 662, 44 N. W. 849; Johnson v. Lake Superior T. & T. Co. 86 Wis. 64, 68, 70, 56 N. W. 161. The instructions of the court contained no statement of the duty of the railway company to maintain such lookout or to give any warning that its cars were approaching and about to cross this path frequented by pedestrians who were licensees. The failure to give this requested instruction as to so vital a question in the case was prejudicial error which must lead to a reversal of the judgment.

By the Court. — Judgment reversed, and cause remanded for a new trial.