173 Wis. 53 | Wis. | 1920
The trial court held that it is undis-putably established by the evidence that plaintiff at the time of injury was a trespasser on. defendant’s freight train and that defendant was not guilty of any want of ordinary care proximately causing plaintiff’s injury. There is no dispute but that the railroad right of' way at' the place in controversy was used by a large number of pedestrians from Hopkins road to go to and from the manufacturing plants north-of this-road, and that plaintiff and his-companions at the time, in question entered upon the railroad right of" way ■ at, Hopkins road to- gather flowers on the right of-'way and in adjacent- fields-.' The place of - accident is in the country' and there aré rto-résidénces located in the immediate vicinity; ' In', view' of all the conditions it- must be held that when plaintiff used' the right of way at- the time in question-as a footway he was traveling thereon as á licensee.' This''gave him-the' privilege' of one traveling over it in the wáy if 'Was' being used by pedestrians to the knowledge of the railroad company, but
The contention that defendant is liable for its default in not having built a cattle-guard at the intersection of its right of way and Hopkins road, upon the ground that the accident to plaintiff “was occasioned in whole or in part” by the absence of such cattle-guard, under the provisions of sec. 1810, Stats., is not sustained. The observation in a similar case (Vaillant v. C. & N. W. R. Co. 163 Wis. 548, 158 N. W. 311) is applicable to the facts in this case:
“The claim that the presence of a legal fence [here- a cattle-guard] on the right of way would have intercepted the boy in the progress of his course and have prevented him from catching the moving train and thus he would have avoided the injury, is based on inferences highly speculative, uncertain, and purely conjectural. It cannot be said, in the light of common experience, that such a fence [cattle-guard] would have intercepted or diverted the boy in his undertaking to reach the . . . train.”
It is clear that the absence of a cattle-guard at the margin of Hopkins road and the railroad right of way did not cause, nor was it the means of producing, plaintiff’s injuries. ' We do not consider that a train of railroad cars on a track can be classed with turntables and like machinery as alluring and attractive to children, so as to put the burden on railroad companies to carefully guard them against danger to small children., St. Louis S. W. R. Co. v. Davis (Tex.) 110 S. W. 939, and cases cited on p. 945.
By the Court. — Judgment affirmed.