Mason v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

89 Wis. 151 | Wis. | 1894

WiNslow, J.

We are of opinion that tbe nonsuit in tbis case should not bave been ordered. There was evidence which tended to show that there had existed for years a beaten path across the tracks and yard of the defendant, which was frequently used by grown people and children, and that this track was so well defined and its use so frequent that the defendant’s servants ■would naturally know the fact. It was said by this court in Anderson v. C., St. P., M. & O. R. Co. 81 Wis. 195: “ It has been frequently held in this and other states that where the grounds of a railway are used by pedestrians for a considerable time without objection, or with acquiescence on the part of the company, a pedestrian crossing over the same becomes thereby a licensee, and is no longer to be considered as a mere trespasser acting at his peril, and that1 it is the duty of the company to exercise increased prudence and caution in operating its road at such point, and to keep a reasonably vigilant lookout to prevent injury or accident to those so crossing its grounds.” Whether, in this case, the evidence showed that there had been such continuous and frequent use of the alleged path in this case by grown people and children, with the consent or acquiescence of the company, that the defendant’s employees must be held bound to anticipate that a child was likely to be upon the path when cars were moved across it, and keep a lookout upon such cars to prevent injury to such child, was, we think, a question which should have been submitted to the jury, under proper instructions. We do not say that the evidence established the fact of a licensed path in this case as matter of law, but simply that the proof entitled the plaintiff to a decision of the question by the jury. Certainly, mere desultory, occasional, or fugitive use of a railroad yard by pedestrians at different places cannot impose any duty to exercise more than ordinary care on the employees of the company; the travel must be confined to a certain and well-defined way; it must have been so continuous, frequent, and well established as to raise an inference of acquiescence in such use on the part of the company, and to impose upon employees the duty of anticipating that the path might or probably would be in use by foot passengers when cars were being moved across it. There was evidence in this case tending to show that no lookout was kept when the cars were moved across the alleged path; also, that the child was upon the path when injured, although there seems to be some conflict upon this latter proposition. This made the entire question one for the jury.

We were strongly urged to hold that sec. 1811, E. S., which makes it unlawful to walk along the track of a railroad, applies to this case and prevents a recovery, as was held in the case of Anderson v. C., St. P., M. & O. R. Co. 87 Wis. 195. In that case the plaintiff’s intestate was killed while walking upon a bridge of the company, which was a part of the main track and was distant from the station or depot grounds. In that case the former cases holding the principle of increased care as to licensed paths in and about depot grounds were cited, and the distinction clearly drawn between such cases and the case of use of a part-of the main track, and the reason for such distinction stated. We shall not reopen the discussion now. The statute referred to was in existence prior to the decision of the Townley Case, 53 Wis. 626; but that case and those following it in this court have uniformly denied its application to a licensed path in and about the depot grounds. These cases are cited in the Anderson Case, and need not be repeated here.

By the Cov/rl. — - Judgment réversed, and action remanded for a new trial.