83 Wis. 631 | Wis. | 1892
The intestate, Otto Froehlich, was killed on the 24th day of October, 1887, by one of the dngines of the appellant company, while near the center of the track of the railway as it runs east and west along Canal street, in the city of Milwaukee, at about 5 o’clock in the afternoon. The engineer had, a short time before, left his engine for a-few minutes in charge of the fireman, and ordered the fireman to go ahead with the work. The fireman, who had been on the south side of the engine,— his proper place,— went directly to the other side,— the proper place of the engineer. The engine had attached to it a very large box car only. The fireman first ran the engine eastward on the side track a short distance, and kicked some cars eastward down the track, and then' ran ahead with the single box car towards the west, intending to go upon the main track. One John Cahill was the switchman at the switch at the junction of the main track with the side track, towards which the engine was moving westward. He stood looking towards the east and the approaching engine. He testified, in effect, that he saw the intestate walking along a not much used pathway on the south side of the track, going towards the west. He was only a few feet from him, and saw him look at the approaching engine just as he was about to warn him of his danger, and for that reason he did not cry out to him. The engine was in plain sight, and very near to the intestate, when he saw him look at it. The intestate then turned to cross over the track (and then the switchman gave the alarm too late), and when about the middle of the track he fell down, and almost immediately the engine ran over him and so injured him that he died in a few hours. When the deceased was struck by the engine, the fireman on the engine, the switchman, and the deceased were within a few feet of each other. There was no obstruction along the track to prevent the deceased seeing plainly the approaching engine before he started to
It hardly seems possible that the deceased should have looked at and seen the approaching engine so near him, and then started to cross over the track; and yet this is the positive testimony of Cahill, standing within a few feet of him, and facing him, repeated and reiterated. He was the only witness to the accident. The fireman, who was running the engine at the time, saw nothing of the deceased until after the accident; and could not have seen him from the right side of the cab, where he was standing, if he had looked. If he had been on the left or south side of the cab,— his proper place as fireman,— he could, and probably would, have seen the deceased as he started to cross over, the track, and in time to have stopped the engine.
The jury returned a verdict for the plaintiff of $5,000 damages. The court overruled a motion for a new trial on the ground that the verdict was contrary to the law and the evidence, besides many other reásons, and the defendant excepted to the denial of the motion. This exception brings before us the consideration of the. case on its merits, and we are satisfied that the judgment ought -to be reversed on the facts. We shall therefore consider no other question than that the verdict is against the evidence.
1. The evidence tends strongly to show the culpable negligence of the defendant company.
2. The testimony shows that the decedent, before attempting to cross the track of the railroad, looked at and saw the approaching train near by and imminent. If this is true, then the deceased was not only negligent, but reck
This is not a new case in this court. There have been a great many judgments in railroad cases reversed by this court on precisely the same ground of not-looking to see if a train is approaching before going on the track. Within the past month, the case of Schmolze v. C., M. & St. P. R. Co. post, p. 659, was decided on the same question, and’it was the only question decided in the case. The judgment Was, reversed because the plaintiff did not look before going on the track, when, if he had looked, he could have seen the train approaching. This is a stronger case than
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.