101 Wis. 363 | Wis. | 1898
This is an action to recover damages for the death of the plaintiff’s intestate, Byron Yant, the plaintiff’s minor son, who was struck by the defendant’s train August 26, 1897, about 11 o’clock a. m., at a railroad crossing within the city limits of Reedsburg, and died in consequence five days afterwards. The complaint is in the usual form. The defendant answered by way of admissions and denials. At the close of the trial the court granted a nonsuit, and from the judgment entered thereon the plaintiff brings this appeal.
The circumstances of the injury are to the effect that the defendant’s track runs out of Reedsburg nearly in a northwesterly direction; that about forty-two rods easterly from the west line of the city limits is a private lane twenty and one-half feet wide, running substantially north and south across the defendant’s right of way and track,— bounded by a wir.e fence on either side; that on the northerly line of the right of way there was, at the time, a gate sixteen feet wide across the lane, which opened upon the right of way and toward and upon the east side of the lane, and which was-at the time in question open, and had been left open for months, and extended to within from two to four feet of a telegraph pole also standing in the right of way and just
In granting the nonsuit the trial court stated, in effect, that the case must be decided wholly upon the undisputed evidence ; that the evidence bearing upon the questions involved, and urged as determining the plaintiff’s rights, was that the approach of this track from the north, from which direction the plaintiff’s intestate was coming, was so situated with reference to the track that a train could be observed for a distance of ninety-four rods northwest, the direction from which the train in question was coming; that between that point and the crossing the corporate limits were fixed, where the parties had a right to presume that the train would be run at the legal rate of speed; that this train must be assumed to have been running, under the testimony, at the highest rate of speed mentioned (sixty miles an hour), which was negligence on the part of the defendant; that the other charge, that there were no signals given, must be a question to be submitted to the jury as to whether it would have constituted negligence or not, in view of the fact that this was a private crossing; that this was a regular passenger train, and, though a few minutes late, yet that did not relieve the public from the care which was required in attempting to cross the track when such a train was about to pass the crossing; that the rule of law established by the decisions is to the effect that though there may be negligence on the part of the defendant in running trains faster than the legal rate of speed, and, though persons had a right to presume that this train would run at the regular rate of speed when it arrived at the corporate limits, yet if it also appears that the persons so attempting to make the crossing, in view of the whole situation and what was plainly before their eyes, were careless in attempting to do so if they saw the train,
Tbe lane in question was narrow, and it is conceded that it was not a good place for a team, approaching tbe crossing from tbe north, to turn to tbe east when inside of tbe right of way. Tbe complaint alleges that tbe deceased was at tbe time of tbe injury traveling upon a street opened many years prior thereto as a private way, but which bad long prior thereto .ceased to be used as such, and, with tbe knowledge, consent, and license of the defendant, bad come into very general and constant use by tbe public as a street for travel thereon. Such allegations were denied by tbe answer, and there was no attempt to prove that tbe lane in question constituted a public highway, and there is no pretense that it was a public highway. Tbe most that is-claimed is that it was much traveled,— more than tbe ordinary country highway; that during tbe last few years an average of fifteen or twenty-five teams crossed tbe railroad daily at that crossing; and that tfie gates on each side of tbe track bad been open for months. These facts, brought home to tbe defendant, would, undoubtedly, increase tbe vigilance and care required of tbe defendant to avoid collisions at tbe crossing. Anderson v. C., St. P., M. & O. R. Co. 87 Wis. 195; Mason v. C., St. P., M. & O. R. Co. 89 Wis. 151. But they did not make tbe defendant responsible for tbe narrowness of tbe lane; nor require it to restore and maintain tbe same to its former condition of usefulness, as in tbe case of a public street or highway. Stats. 1898, sec. 1828, subd. 5, and sec. 1836. Tbe railway was there for tbe purpose of running trains over it. That was obvious to everybody having occasion to cross. The train in question was due about tbe time of tbe injury. Tbe driver was a mature man, and lived near, and must have known of tbe conditions present. If be failed to look and observe tbe
By the Oowrt.— The judgment of the circuit court is affirmed.
