Mills & Le Clair Lumber Co. v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

94 Wis. 336 | Wis. | 1896

NewMAN, J.

The appellant alleges six errors: (1) The exclusion of evidence showing the speed of the train and the absence of warnings by bell and whistle. (2) In not directing a verdict for plaintiff. (3) In submitting to th¿ jury the question whether the place where the mules entered the right of way was depot grounds. (4) By writing into the special verdict the figures “ 1,000,” by mistake, instead of “ 100,” in answer to a question. (5) The jury erred in answering- “ No evidence ” to the question, “ Flow far and in what direction from the place of the accident did the mules enter upon the right of way ? ” (6) The general verdict is contrary to the law and to the evidence.

No doubt South Bangeis a station on the defendant’s line of road, at which it may lawfully have depot grounds of reasonable extent, which it may permit to remain unfenced. Although its depot accommodations are somewhat limited and meager, it is a place where passengers get on and off' trains, where goods are loaded and unloaded, where cars are-set out upon side tracks, to be loaded and unloaded, and stored, and again taken up into trains. “ Depot grounds ” has been defined by this court to be “ the place where passengers get on and off trains, and where goods are loaded and unloaded, and all grounds necessary and convenient and actually used for such purpose by the public and the railroad company. This includes the switching and making up of trains, and the use of side tracks for the storing of cars, and the place where the public requires open and free access to the road for the purpose of said business.” Grosse v. C. & N. W. R. Co. 91 Wis. 482. The extent of the defendant’s depot grounds at South Eange was limited and defined by the act of the company itself in the location of its switches and cattle guards. Prima facie, no doubt, the depot grounds include all that part of the right of way which is left un_ fenced between the switches and cattle guards, on either side of the platform, including the switches and side tracks, and, in the absence of evidence showing that they are unreasonable in extent, will be deemed the true limits. It has even been held by this court, in effect, that depot grounds may be deemed, in some cases, to extend, even beyond a switch, to that point to which an ordinary freight train must run in order to switch and run back upon its side track. Fowler v. Farmers' L. & T. Co. 21 Wis. 77. The testimony tended to show, not that the space left unfenced was not both convenient and reasonably necessary for proper depot purposes, but that it was not in fact used for loading and unloading cars at the place near the switch, where the diverging lines of track were very near to each other, and where, also, from the nature of the ground such operations were inconvenient. It was at such a point that the mules were struck by the train. Such a situation of tracks relative to each other must be at every place where a side track diverges from the main track, but such situation alone will not be sufficient to show that proper depot grounds may not include such point. One of the proper purposes of depot grounds is space for side tracks and switching ground. There really was no testimony offered or given which tended to show that the depot grounds appointed by the railroad company were unreasonably extensive. So, probably, it was a mistake to submit the question to the jury. But the mistake worked, no injury to the appellant. This disposes of the second and third alleged errors.

The court rejected evidence to show the speed of the train and the omission to sound the whistle and ring the bell. There is no statute restricting the rate of speed at which it may be lawful to run trains past South Range. Nolan v. M., L. S. & W. R. Co. 91 Wis. 16. Signals by the whistle and bell are meant exclusively for the protection of persons who are about to cross the railroad at public crossings. Voak v. N. C. R. Co. 75 N. Y. 320. They are not designed for the protection of brute animals, which could not be expected to either understand or heed the warning. Besides, the mules were trespassers on the defendant’s right of .way. The defendant Ead no duty to fence against them at that place, and owed them no duty of active care. In such a case the company is liable only for a wilful or unnecessary injury. Stucke v. M. & M. R. Co. 9 Wis. 202; Chicago & N. W. R. Co. v. Goss, 17 Wis. 428; Bennett v. C. & N. W. R. Co. 19 Wis. 145; Fisher v. Farmers' L. & T. Co. 21 Wis. 73; Bremmer v. G. B., S. P. & N. R. Co. 61 Wis. 114; Rorer, Railroads, 487; Wood, Railroads (Minor’s ed.), 1859. Such trespassing animals are not, however, outlaws. It is the duty of the train servants, after becoming aware of their presence upon the track, to use all possible and reasonable care to avoid injury to them. If the train can safely, by ordinary diligence, be stopped in time to avoid striking them, the train should be stopped. But it is not required to imperil the safety of the train in order to save the trespassing animals. No evidence-was offered or given to show a want of such reasonable care after the perilous situation of the mules became known to the servants in charge of the defendant’s train. It was no error to exclude evidence of the speed of the train or the failure to give signals warning of its approach.

A question was asked the jury, in effect, how far south of the north switch was the place of the accident? The evidence, without conflict, showed it to be about 100 feet. The court wrote the answer “ 1,000 feet,” by some inadvertence. This could have misled no one. There was no dispute that the place of the accident was within the limits fixed by the defendant for its depot grounds, and where its switches and side tracks were placed.

To a question asking where the mules came upon the right of way, the jury answered, “ No evidence.” While there was, perhaps, no evidence which fixed the precise spot where they entered upon the right of way, it was not questioned that they entered upon some part of the depot, grounds so left unfenced, and not far from the place of the accident. It could have introduced no element of certainty not already in the case to have had this question definitely answered.

The verdict is amply sustained by the evidence. No material error is discovered.

By the 'Court. — The judgment of the superior court of Douglas county is affirmed.