119 Wis. 7 | Wis. | 1903
We cannot say that there was any error-in refusing to submit to the jury the question whether the defendant was negligent in failing to keep a lookout in the direction in which the train was going at the time. The facts are given in the foregoing statement. The engineer was on the lookout on his side of the train all the time as they approached Seventh avenue. The mere fact that the fireman, in pursuance of the requirements of his duties, just before reaching that avenue, got down on the deck, where he could not look ahead, cannot be regarded as negligence, under the circumstances stated.
2. But there is evidence tending to prove that the train was at the time going at the rate of more than six miles per hour. The statute declares, in effect, that “no train or locomotive shall go faster” in any city or village “than at the rate of six miles per hour,” until it has “passed all the traveled streets thereof.” Sec. 1809, Stats. 1898. But counsel for the defendant -contend that the next section of the statute makes an exception to the general rule, and permits a speed of fifteen miles an hour, and only requires gates to “be placed
3. This being so, we cannot say, as a matter of law, that such unlawful rate of speed was not the proximate cause of the injury and death of the child. Of course, a child of such tender years is not chargeable with contributory negligence. If it is claimed that the parents were, that would, at least, be a question for the jury. Hoppe v. C., M. & St. P. R. Co. 31 Wis. 357, 21 N. W. 227; Hooker v. C., M. & St. P. R. Co. 76 Wis. 542, 44 N. W. 1085. The liability of a railway train running over pedestrians, and especially children, in cities and villages, is, of course, much greater than in the country. The object of the statutes so limiting the rate of the speed of trains in cities and villages was to prevent such injuries. The question of proximate cause was properly for the jury, under appropriate instructions from the court.
By ihe Court. — The judgment of the circuit court is re-. versed, and the cause is remanded for a new trial.