98 Wis. 157 | Wis. | 1898
The defendant claimed upon the trial below that the evidence failed to show any negligence upon its part in any of the ways claimed by the plaintiff, and the questions arising upon this broad claim are properly preserved by exceptions for review upon this appeal. As stated in the statement of the case, negligence causing the injury was claimed by the plaintiff in four respects, viz.: (1) In running the train at a dangerously high rate of speed; (2) in
■ 1. The court finally took from the jury the question of the alleged negligent rate of speed of the train, and charged that the evidence did not show negligence in this respect. This was plainly right. The crossing was in the country, .where there was no limitation, either by statute or ordinance, upon the speed of trains. Under such circumstances, it cannqt be said that it is negligence to run a train at or about the speed of forty miles per hour, or that negligence can be inferred from suoh fact alone. Mills & Le Clair L. Co. v. C., St. P., M. & O. P. Co. 94 Wis. 336.
2. The court also charged that there could be no recovery upon the ground of failure to properly fence the right of way, and this was so clearly correct that we shall spend no time in discussing it, but simply say that there was no evidence tending to show that either a fence, or the absence of a fence, had anything to do with the accident.
3. The statute (R. S. sec. 1836) requires every railway company constructing its road across or upon any highway to restore such highway to its former state, or to such condition that its usefulness shall not be materially impaired. It has been held by this court that this provision applies only to cases where the railroad is built upon or across an already existing highway. Chicago, M. & St. P. R. Co. v. Milwaukee, 97 Wis. 418. In the present case it is claimed that there was no evidence to show that the highway in question was an existing highway at the time of the construction of the railroad, and hence that the statute above referred to had no application. Upon this point it is sufficient to say that two witnesses acquainted with the locality testified, in substance, that they were acquainted with the highway at this point before the railroad was built, and one •of them stated that it was traveled at that time. We re
The defect which it was claimed existed in the highway, and for which it was claimed the defendant was responsible, was that there was a deep ditch within the limits of the highway and of the railroad right of way, just south of the traveled portion of the highway, as it approaches the point of crossing. There was some testimony which tended to show that the young man heard the train, and stopped his horses within a short distance of the crossing, and that they plunged somewhat, and went partially into the ditch, and then came out of it, throwing the young man from his seat to the ground when about crossing the track, just ahead of the train, and so it is claimed that the existence and presence of the ditch was a direct cause of the accident. The radical difficulty with this claim is that it is nowhere shown that the ditch Avas constructed or caused by the building of the railroad. As far as the evidence shows, it may have existed at the time the railroad was built. Certainly it was necessary for the plaintiff to show that the railroad company failed in performing its duty under the statute, and in so failing caused or made the ditch. There being an entire absence of such evidence, there was nothing to go to the jury upon this ground of negligence.
4. As to the alleged failure to give the statutory signals for the crossing, there was really no evidence Avhich would support a Arerdiot to the effect that the proper signals were not given. No witness testified that the bell was not rung, and two witnesses testified, simply, that they did not hear the Avhistle blown eighty rods before reaching the crossing, but did hear it blown at a point about forty-five rods west
These conclusions necessitate reversal of the judgment.
There are some other contentions made, however, which seem to require attention.
The plaintiff called as a witness one Bennett, who was upon the highway at the time of the accident, and was an eyewitness of it. It seems that Bennett’s deposition had been- previously taken by consent of counsel on both sides, under an oral stipulation that it might be read upon the trial. However, the witness was present at the trial, and so the reason for using it no longer existed, and, under the statute, it was no longer admissible. R. S. sec. 4089. Shortly after beginning the examination of Bennett, Mr. Sutton, who conducted his case in person, stated that he wished to read from the deposition, and to cross-examine the witness, which proceeding was duly objected to. Mr. Sutton then proceeded in his endeavor to get the deposition in evidence, stating, in presence of the jury, that “the witness’ evidence is so far at variance with his deposition that it is an outrage on the court; ” that he had expected it, ever since he had seen the witness in close consultation with Mr. Luse; that the witness had been “handled” by defendant’s claim agent and attorney, and that he {Sutton) knew what he was talking about, and that for that reason he was not surprised when the witness came into court and made these statements now. After considerable of this sort of talk on the part of counsel, and a number of reiterations in various ways of the charge that the witness had been tampered with, the court refused to
A suggestion was made that the appeal should be dismissed for the reason that Mr. Luse, wrho signed the notice of appeal, was not at that time a resident of this state. Mr. Luse’s name appears upon the roll of attorneys of this court. There is nothing in this record to show that he has changed his residence, and certainly the court cannot take judicial notice of the fact. What would be the effect of such a change, if it wrere shown to have taken place, is not determined.
By the Oo'wrt.— Judgment reversed, and action remanded for a new trial.
