90 Wis. 186 | Wis. | 1895
The depot in Mazomanie fronts to the north. At the east end of the depot platform is Brodhead street, running north and south, and about eighty feet wide. About 275 feet east of Brodhead street is the turn-table, and about 540 feet east of Brodhead street is the water-tank. Immediately north of the depot, and about eight feet from it, is the main railway track, and there are two tracks north of that, and immediately south of the depot is another track, rand about sixty-five feet south of that is still another track. Southwest from the depot, and about 100 feet from it, are the stock yards, and the ice-house is immediately west of .that, and they are both between the two last-named tracks. The stock yards and the ice-house together are about 160 feet in length. Nearly 200 feet west of the depot, and 320 feet west of Brodhead street and parallel with it, is what was originally laid out as Scott street, eighty feet in width, but which is now entirely crossed by the stock yards and the ice-house mentioned. The depot platform runs west to Scott street. Scott street, north of the railway grounds, is
. The undisputed evidence is to the effect that at the time-of the trial Kapinos was fifty-two years of age; that he had lived in this country thirty-eight years; that fifteen years of the time he had resided in Mazomanie; that he had worked for the defendant on a gravel train and section work from the spring of 1867 to the fall of 1892; that he was familiar with the manner of handling brakes and train signals; that on the morning of February 10, 1893, he went from where he was living, in the southeast part of the village, to see one Krachey, residing on Scott street north of the railway; that, failing to find him, he again returned to»
One of the plaintiff’s witnesses, who was at the time standing on the north side of the depot and about the middle of the depot platform, testified to the effect that when Kapinos was struck the engine had just passed over Brod-head street, — which would indicate that the cars at the time were about 440 feet back of the engine. Other witnesses put them considerably further apart, but the discrepancy is not material. There is some slight discrepancy as to the precise distance Kapinos stood south of the main railway track when talking to Loudine, just before he started to go north; that is to say, whether he stood eight or ten feet south of the track, or a step or two further south. But this is not material, in view of the fact that Kapinos testified to the effect that he could see the track west to a point about the middle of the coal shed.
The question arises whether, upon the undisputed evidence, the court was justified in submitting the case to the jury.
1. We are constrained to hold that, in the absence of contributory negligence, there would have been sufficient evidence to justify such submission as to the defendant’s negligence in failing to keep a lookout in the direction in which the car which struck Kapinos was moving, as it approached the crossing where people were liable to be. Heddles v. C. & N. W. R. Co. 74 Wis. 247; Johnson v. L. S. T. & T. Co. 86 Wis. 64.
These views are in harmony with numerous adjudications of this court. Langhoff v. M. & P. du C. R. Co. 23 Wis. 43; Delaney v. M. & St. P. R. Co. 33 Wis. 67; Haas v. C. & N. W. R. Co. 41 Wis. 44; Kearney v. C., M. & St. P. R. Co. 47 Wis. 144; Schilling v. C., M. & St. P. R. Co. 71 Wis. 255; Olson v. C., M. & St. P. R. Co. 81 Wis. 41; Hansen v.
The facts in the case at bar are much less favorable to a recovery than several of the cases here cited. The cases relied upon by counsel for the plaintiff are clearly distinguishable. The nearest approach of any of them to the case at bar is, perhaps, Ferguson v. Wis. Cent. R. Co. 63 Wis. 145, where, in a village, the plaintiff stepped upon the track immediately after the engine had passed, and when he was so enveloped in smoke and steam from the engine as to prevent him from seeing the approaching cars, which had been uncoupled and were following the engine, and it was held that the question of contributory negligence was properly left to the jury. No such facts are here present.
Upon the undisputed evidence, as well as the verdict, we must hold that Mr. Kapinos was guilty of contributory negligence. There are manifest errors in the record, but we have felt that it is better for all parties that the case should be decided upon the merits.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.