Leitch v. Chicago & Northwestern Railway Co.

93 Wis. 79 | Wis. | 1896

Winslow, J.

As stated in the foregoing statement of facts, there were two grounds of negligence claimed by the plaintiff : First, that the defendant had failed to restore the highway to its former condition of usefulness and to so maintain it; and, second, that the defendant’s employees failed to give the proper warning signals when approaching the highway with their engine. Both of these alleged grounds of negligence were submitted to the jury and they were told, substantially, that if they found negligence in either respect which was the direct cause of the injury they should, in the absence of contributory negligence, return a verdict for the plaintiff. This was clearly error. There was absolutely no-evidence of any failure to restore the highway to its former «condition, as required by sec. 1836, R. S., so far as it is physically possible to do so when a railroad is constructed across a highway. The only defect or change in the condition of ■the highway seriously claimed is that a bank existed along ■the right of way, and entirely outside of the highway, which obstructed the view of an approaching train to travelers approaching the track from the direction in which the plaintiff approached. This bank consisted almost entirely, if not .entirely, of a natural hill, through the base of which the track was laid in a cut. The failure to remove this hill cannot, in any fair or reasonable sense, be said to be a failure to restore the highway to its former condition of usefulness. It was proper to show that the bank existed, and to show that it interfered with the view of an approaching 'train. This evidence was relevant as showing the entire situation at the time of the accident as bearing upon the other alleged ground of negligence, namely, the alleged failure to give warning of the approach of the train, but it was not a ground of negligence itself. ¥e are aware of no rule of law, either statutory or otherwise, which requires a railway •company to remove natural hills within its right of way; but the fact of the existence of such a hill may be shown, and the question may then be whether, in view of the presence of such a hill and its effect upon the vision of the traveler, the train was moved with prudence or negligence. The principle is quite similar to that laid down by this court in Heddles v. C. & N. W. R. Co. 74 Wis. 239. It was manifestly not competent to allow evidence of the labor or money required to remove the bank. The verdict is general, and may, under the charge, have been rendered solely on the ground that the railway company was negligent in not removing the bank of earth; hence the judgment must be reversed.

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