Rohde v. Chicago & Northwestern Railway Co.

56 N.W. 872, 86 Wis. 309, 1893 Wisc. LEXIS 162

Opinion

Winslow. J.

In support of the demurrer, it is argued that the complaint does not show that the negligence mentioned, i. e. the failure to lower the gates, was the cause of the accident. There is certainly much force in the argument. The complaint is far from being a model. It does not set forth that direct, logical sequence of events by which it would appear that the accident was the result of the negligence charged, as clearly as could be desired. We think, however, that, by a fair construction of the complaint, its substance is as follows: That the crossing was a dangerous one; that the defendant had for some time, to the knowledge of plaintiff, maintained guard gates at the place; that, relying on the fact that there were such gates and that they were always lowered on the approach of trains, the plaintiff, because the gates were not lowered, approached the crossing, and was about to pass over it, when a train passed and caused his horse to run away and thus inflicting the injuries complained of. If this is the proper construction of the somewhat disjointed allegations of the complaint, it certainly charges actionable negligence on the part of the defendant. The open gate was an assurance to the public that there was no danger, and an invitation to cross in safety. Glushing v. Sharp, 96 N. Y. 676; Palmer v. N. Y. C. & H. R. R. Co. 112 N. Y. 234; Evans v. L. S. & M. S. R. Co. 88 Mich. 442. If plaintiff proves that he accepted the invitation, and thereby put himself in a position of imminent danger (where he would not have been had the gates been lowered), and was injured by defendant’s negligent act, no contributory negligence appearing, he establishes a cause of action. We think the .complaint should be construed as alleging these facts in substance.

By the Court.— Order of the superior court affirmed.