Schuenemann v. Director General of Railroads

177 Wis. 218 | Wis. | 1922

Owen, J.

Sec. 1836, Stats., requires every railroad company to restore every street or highway along or upon which such railroad may be constructed to its former state or to such condition as that its usefulness shall not be materially impaired, and thereafter maintain the same in such condition against any effects in any manner produced by such railroad. By sec. 1299h — 1 it is provided that the railway company shall at its own expense construct, grade, and maintain in safe condition for public travel the portion of such street or highway extending upon, over, or across the tracks or right of way of such railway company; and by sec.. 1?0O7,__q it is provided that when ever any railroad company shall fail in its duty in this respect, the village board may by resolution require any such railway company to improve such crossing, as the needs require, upon failure of which the village board may improve the crossing in the manner required and recover the reasonable cost thereof from the railway company. The duty of the railway company is to restore the highway to such condition that its usefulness shall not be materially impaired and thereafter maintain the same in such condition against any effects in any manner produced by such railway company. As the municipality is not required to keep a public highway fit for travel throughout the entire width of the laid-out highway (Kelley v. Fond du Lac, 31 Wis. 179; Rhyner v. Menasha, 97 Wis. 523, 73. N. W. 41), it is not necessary for the railroad company to maintain a planked crossing throughout its entire width in order to maintain a condition at the crossing that does not materially impair the usefulness of the highway. Obviously there can be no object in planking between the rails outside of that portion of the highway used by the public for the purposes of travel. Of course in a populous city where the entire width of the street is used for the purposes of travel, the railroad company must maintain a safe crossing over the entire.portion of the street. This., however, was not the case with Cottonwood avenue. The traveled portion of the highway both north and south of the track was sixteen feet, and the planked portion of the crossing corresponded fully with the traveled portion of the highway both north and south.

It is contended that an unusual situation is presented by the fact that the depot grounds merged with the traveled portion of the highway so that it was an easy matter to: get too far to the right. An examination of the photographs introduced in evidence, however, discloses that the approach to the tracks was built up even with the top of the rails only at the planked crossing, and that the rails projected above the surface at the end of the planking, thereby forming an abrupt shoulder, which constituted a warning to the traveler, if in fact there was any difficulty in seeing from the driver’s seat the extent of the planking between the rails. The crossing was illumined by a light upon the depot platform as well as the lights upon the car. The photograph indicates, and the trial judge who viewed the premises stated in passing upon the motion for a directed verdict, that the traveled track was plainly distinguishable from the depot grounds. There seems to have been no excuse whatever for»a careful driver to have wandered so far to the right and to encounter the abrupt shoulder presented by the rails’rising above the surface of the ground.

More than this, it is practically conceded that the crossing had been maintained in its then condition for a period upwards of sixty years without any complaint on the part of the village authorities or any direction by them to improve the same in any manner. While it is possible the village authorities might acquiesce in a dangerous crossing throughout such a long period of time, it is extremely unlikely that they would do so in view of the fact that a safe condition could be insisted upon without expense to the municipality.

It is true that there was evidence of a desultory nature and questionable admissibility tending to, show two or- three isolated instances of accidents similar to the one resulting in plaintiff’s injuries, but such evidence was of little probative value because of the hearsay character thereof and the entire lack of any evidence as to the manner in which such prior accidents occurred. The trial court not only had before it the evidence in the case, but had the benefit of a view of the premises. His disposition of the case should not be disturbed unless it affirmatively appears that the jury would have been warranted in finding that the defendant had breached its duty in the premises. This does not appear, and the judgment must be affirmed.^

By the Court. — Judgment affirmed.