76 Wis. 542 | Wis. | 1890
The following opinion was filed March 18, 1890:
The facts of this case are briefly as follows-: On the afternoon of the 14th day of September, 18S6, the wife of the plaintiff, and mother of the little girl, Catharine, deceased, let her go with her little playmate, Edith Jones, to the house of one Mrs. Dacey, to spend the afternoon. Mrs. Dacey lived alone, about 325 feet south of the railway bridge, across the west branch of the Book river, in the city of Waupun, and about 100 feet east of the track. The bridge is 138 feet long, and 76 feet of it, over the water, was inclosed on both sides, and persons going over it had to walk on the ties. It is 1,056 feet south of the north boundary of the city, and about the same distance north of the depot. The road runs north and south through the city, but about 600 feet north of the bridge it curves towards the east. Erom a point 1,168 feet north of the bridge, on the west side of the track, at the height of an engine cab, the whole track could have been plainly seen, southwards through the bridge, and to Main street beyond, without any obstruction whatever. Mrs. Dacey was a care
The road from the north for a considerable distance, and to within a mile of the city, had a descending grade. The train consisted of ten freight and three passenger cars, with the tender and engine. The testimony tends to prove that the train had been running at the rate of forty miles an hour, until it had approached the city, and that afterwards, when within the city limits, it was run at the rate of from twenty-five to thirty miles an hour; and that the engineer saw these persons on the bridge when the train had approached a point 965 feet from them, and might have easily stopped the train before it had reached the bridge, even if it had been running at six miles an hour. He testified that he could stop the train within 600 or 700 feet if it had been running at the lawful speed of six miles an hour, and that he might have stopped it as it was then running within 1,000 feet, and the evidence was that he might have seen these persons at a point over 1,200 feet from them. The train was behind time, which may account for the fast running. The testimony tended to prove, also, that the bridge had, for many years and up to the time of the accident, been habitually and constantly used, by men, women, and
The plaintiff sues as administrator for his deceased child. The jury rendered a verdict for the plaintiff at $500, and the defendant’s counsel moved to set it aside and for a new trial on the minutes of the court and on affidavits showing that one of the plaintiff’s witnesses had testified in the trial to that which was not true. The motion was denied.
We will consider the points'made by the learned counsel of the appellant in their order:
1. That the court should have directed a verdict for the appellant. This raises the question of the legal effect of the testimony. The learned counsel of the appellant contends that there is no law that prohibited the running of the train at a rate of speed exceeding six miles an hour after it had entered the city and until it reached the bridge, because it passed over no traveled streets. See. 1809, E. S., provides that, “ in all cities and villages, ... no train or locomotive shall go faster, until after having passed all the traveled streets thereof, than at the rate of six miles per hour.” This train had entered the city from the north, and was going south. It had not yet come to a traveled street, and, of course, had not passed all the traveled streets in that city. It was just about to come to a traveled street, and if it was running, until then, twenty-five miles an hour, it could not stop or lessen the speed to six miles an hour, before it passed at least one traveled street at an unlawful rate of speed. The statute is well framed to prevent this. It must not run within the city'- at a greater speed than six miles an hour, and the only exception is,
It is further contended by the learned counsel that Mrs. Dacey and the children wore trespassers on the bridge. We think that there was evidence, which the jury might have believed, that the bridge had hitherto been habitually and constantly used as a pathway to and fro, by the people in that part of the city. Mrs. Dacey was using the bridge as a way through which to get home, and not for play, when the train came in sight. It is clear enough that she was a licensee in the use she made of the bridge, and that
2. Exception was taken to the testimony of the witness G-errits, of what the engineer said about the accident, about as soon as he stopped his train, south of the bridge and north of the depot, or soon thereafter. The testimony was that when asked, “ What have you been doing ? ” he looked up and said they had “ whistled enough for them.” It seems that the engineer was going towards the bridge when this occurred. Whatever the jury might understand was meant by this expression, we are satisfied that it occurred near enough to the accident itself to be a part of the res gestee and admissible. Felt v. Amidon, 43 Wis. 467, and other cases cited in the brief of respondent’s counsel.
3. The newly discovered testimony to impeach Julius Zimple, one of the plaintiff’s witnesses, as a ground for a new trial, was upon the question of his experience and competency as a locomotive engineer and to testify as an expert, and the falsity of his testimony as to how soon the train might have been stopped. It does not appear that the testimony of that witness conflicted materially with that of the engineer of the train upon the real question whether the train might have been stopped before it reached Mrs. 'Dacey and the children if it had been running at a lawful rate of speed. At all events, a new trial ought not to be granted on account of newly discovered evidence of mere impeachment. Bunn v. Hoyt, 3 Johns. 255; Shumway v. Fowler, 4 Johns. 425; Harrington v. Bigelow, 2 Denio, 109; Delaney v. Brunette, 62 Wis. 615; Schacherl v. St. P. C. R. Co. 43 N. W. Rep. (Minn.), 837; Jones v. C., M. & St. P. R. Co. 43 N. W. Rep. (Minn.), 1114. There was no abuse of the discretion of the court in refusing to grant a new trial for such cause. Smith v. Champagne, 72 Wis. 480.
The court was requested by the defendant’s counsel to
The jury considered the question of the negligence of Mrs. Dacey understandingly and fully, as it had been so often impressed upon them by the court, and must have found that she was guilty of no want of ordinary care that contributed to the death of the child. That was a question peculiarly within their province to decide, and their decision of it should be conclusive and a finality if the evidence was not such as to show that she was negligent beyond all question. Randall v. N. W. Tel. Co. 54 Wis. 140; McNamara v. Clintonville, 62 Wis. 207; Hill v. Fond du Lac, 56 Wis. 246; Kaples v. Orth, 61 Wis. 531; Ferguson v. W. C. R. Co. 63 Wis. 145. We cannot say from the evidence that Mrs. Dacey was guilty of any want of ordinary care in going upon the bridge with the children. She
By the Court.— The judgment of the county court is affirmed.
A motion fora rehearing was denied April 29, 1890.