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

88 Wis. 531 | Wis. | 1894

The following opinion was filed October 2, 1894: '

NewmaN, J.

The plaintiff was a mere licensee. The defendant owed him no duty of active care. The plaintiff himself was bound to the exercise of the highest care to shield himself from injury. He had no reason to expect that the defendant would regulate the running of its trains, or change the course of its business, to suit his purposes or convenience. He could expect from it only such consideration and ordinary care as it owes to the general public. Cahill v. Layton, 57 Wis. 600; Hogan v. C., M. & St. P. R. Co. 59 Wis. 139; Truax v. C., St. P., M. & O. R. Co. 83 Wis. 547; 2 Wood, Railroads, 1469, and cases cited. Butler Bros, took the permission to use the defendant’s right of way in the manner in which they were using it, subject to the ordinary risk and danger which was incident to the use of the spur track by the defendant in the manner in which it was accustomed to use it. There was no implied promise on the part of the defendant to cease doing any part of its customary business in the customary manner, or that it would desist from any customary service to any of its patrons along that track.' The evidence fails to show that anything was done by the defendant out of the customary course of its business along that track. The verdict is contrary to the law.

By the Court.— The judgment of the superior court is reversed, and the cause remanded for a new trial.

A motion for a rehearing was denied November 13,1894.