49 Wis. 529 | Wis. | 1880
The nonsuit can only be sustained upon the grounds, first, that the jury would not have been warranted in finding, upon the evidence, negligence upon the part of the servants of the defendant; or second, that the evidence did show negligence on the part of the boy, or his parents, which contributed to the injury. A glance at the testimony will show that the nonsuit was wrong upon either ground. The boy was about six years old, and, as we understand the testimony, was killed at a place where the railroad track crossed a public street in Port Howard. The highway was one much traveled by
The jury might reasonably have found that the engineer did not exercise the prudence and care required under the circumstances; that he was guilty .of negligence in not looking out of the window on the side of the engine to see whether there was any person in the street at the crossing who was in danger of being injured by collision’. A proper regard for the lives and safety of persons on the street, at that place, would seem to impose at least that degree of care and vigilance upon the servants of the company. If the engineer had even looked out of his window, as he approached the crossing, possibly he might have seen the little boy playing in the highway, and have stopped his engine in time to have avoided the accident. At all events, the question should have been submitted to the jury to determine whether, under the circumstances, the servants of the defendant exercised reasonable vigilance and care to avoid inflicting injury upon persons in the street at that crossing.
The evidence was not so clear exculpating the defendant as to justify the court in withdrawing the case from the consideration of the jury. The learned counsel for the defendant assumed, in his argument, that the evidence showed that the boy was killed upon the track northward, towards the switch,
This was the only witness sworn who was able to state where the boy was when he was struck by the engine, and she distinctly says that he was in “ the middle of the road, right in the track between the two rails.” But he was upon the highway, where he had a lawful right to go, and while there, yielding to a “ childish instinct,” or impulse, had stopped for a moment to play with something in the highway which attracted his attention. And had the engineer been vigilant and careful, and looked out of the window of the locomotive as he approached the crossing, it is barely possible he might have seen .the boy in time to have saved his life by stopping his engine. It seems needless to remark that the operation of a railway over and along public streets in a village or city is necessarily attended with great peril to human life and property, especially under the circumstances disclosed in the testimony in this case; consequently the utmost care should be exercised by the servants of the corporation to avoid injury. Butler v. Mil. & St. Paul Railway Co., 28 Wis., 487.
So in respect to the other, question, namely, whether the boy
By the Court. —Judgment reversed, and new trial ordered.