62 Wis. 178 | Wis. | 1885
Independently of the fact that the defendant’s locomotive and train of cars were near the highway and railroad crossing when they emerged from the cut and frightened the horse being driven on the adjacent highway by the plaintiff’s wife, we think the defendant would have been, under no obligation either to slacken the speed of the train or give any signal of its approach. There is no statute, and we are aware of no common-law rule, which, under such circumstances, requires railroad companies to observe those
The statute provides that “ before crossing any highway, except in cities and villages, with any locomotive, the whistle shall be blown eighty rods from such crossing, and the engine bell rung continuously from thence until the highway shall be crossed by the locomotive.” R. S. sec. 1809. Under this statute no negligence or breach of duty can be imputed to the defendant because of the speed of the train. The case made by the complaint is that the whistle was not sounded, or the bell rung, when the train, approached the crossing, and that the failure to do so was the proximate cause of the injuries complained of.
It is doubtless true that unless the defendant owed the duty to the plaintiff’s wife and children to blow the whistle and ring the bell, the complaint fails to state a cause of action. But if it owed them such duty, then the complaint states a cause of action. These propositions are illustrated by some of the cases cited by counsel for the defendant. Thus it was held in Harty v. C. R. R. Co. of N. J. 42 N. Y. 468, that the sole object of a statute of New Jersey, similar to ours, was to protect persons traveling the highway at or near the crossing, and that the railroad company owed no duty to a person injured by a passing train, when such person was on the track near a crossing (although lawfully there), to blow the whistle or ring the bell. Hence it was held that a failure to give the signals required by the statute did not render the railroad company liable for such injuries. ' To the same effect is O'Donnell v. P. & W. R. R. Co. 6 R. I. 211.
The controlling question in this case is, therefore, Hid the defendant company owe the duty to the plaintiff’s wife, and their children who were with her in the buggy, to give the
It was maintained in the argument on behalf of the defendant that the statutory precautions have no application to a person traveling a highway parallel with the railroad, but only to those travelers on the highway who are about to use the crossing. The highway along which plaintiff’s wTife was driving when her horse became frightened and unmanageable, was substantially parallel with the railroad at the place of the accident, and the complaint does not allege that she intended to or was about to drive across the railroad.
None of the cases cited by counsel to these propositions seem to sustain the doctrine contended for, with the single exception of the case of East Tenn., V. & G. R. R. Co. v. Feathers, 10 Lea (Tenn.), 103. The court gave a construction to the statute of that state which, to some extent, sustains the position of counsel for defendant. It seems to us that the case was entirely outside the statute, and called for no construction thereof. In that case the facts, as stated by the court, were these: “Plaintiff and his wife were riding horseback from church. The road they chose to travel after crossing the railroad ran along, near, and parallel to the railroad for probably a mile or more. Plaintiff and wife were riding along this road, going east, having passed the crossing from a quarter to half a mile west of wThere the public road crossed the railroad, when a train approached from the west, going east, the noise of which frightened the wife’s horse, which threw her and injured her severely.” From this statement, although somewhat obscure, it is understood that the injured person was more than a quarter of a mile from the crossing when her horse became frightened and threw her, and it is a fair inference from the statement that the train of cars was an equal distance therefrom at the same time, and had passed the crossing. The statute required the signal to be sounded when the locomotive was
In the other cases cited by defendant’s counsel, either the persons injured were not upon the highway when injured, or, being upon the highway, they were charged with contributory negligence. The New York and Rhode Island cases above cited, and also Holmes v. C. R. R. & B. Co. 37 Ga. 593, and Elwood v. H. Y. C. & H. R. R. R. Co. 4 Hun, 808, belong to the former class. The case of Fletcher v. A. & P. R. R. Co. 63 Mo. 484, and Haas v. G. R. & I. R. R. Co. 47 Mich. 401, belong to the latter class.
On the other hand, as we have already seen, the case of Harty v. C. R. R. Co. of N. J. 42 N. Y. 468, holds that the statute was enacted for the protection of persons traveling the highway at or near the crossing. It does not exclude from the protection of the statute travelers on the highway who do not intend to use the crossing. In the opinion by Earl, C. J., the following language of Allen, J., in People v. N. Y. C. R. R. Co. 25 Barb. 199, is quoted approvingly: “ The hazards to be provided against were twofold: (1) The danger of actual collision at the crossing; and (2) that of damage by the frightening of teams traveling upon the public highway ” near the crossing. In the latter case, the court was considering a statute of New York in principle precisely like ours. The ’track of the railroad crossed the highway at an elevation of fifteen feet above it. Hence, in that case, there was no possibility of a collision. Yet the court held that persons traveling the highway in the vicinity of the crossing were within the protection of the statute, and that the railroad company owed them the duty to ring
We think the construction thus given to the New York statute by the courts of that state is most reasonable and sensible, and is sustained by the weight of authority. We do not hesitate to adopt it as the true construction of our own statute. It must be held, therefore, that, upon the case made by the complaint, the defendant company owed the duty to the plaintiff’s wife and children to give the signals required by the statute when its locomotive and train were approaching the crossing. Its failure to do so was negligence; and if the plaintiff can satisfy the jury that it did so fail, and that such failure was the proximate cause of the injuries complained of, he ought to recover.
We conclude that the complaint states a cause of action, and the demurrer thereto should have been overruled.
By the Court.— Order reversed, and cause remanded for further proceedings according to law.
