Smith v. Chicago & North Western Railway Co.

Wisconsin Supreme Court

Smith v. Chicago & North Western Railway Co.

205 N.W.2d 166, 57 Wis. 2d 769, 1973 Wisc. LEXIS 1609

CourtWisconsin Supreme Court

DecidedMarch 27, 1973

DocketNo. 247

StatusPublished

This text of 205 N.W.2d 166 (Smith v. Chicago & North Western Railway Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Chicago & North Western Railway Co., 205 N.W.2d 166, 57 Wis. 2d 769, 1973 Wisc. LEXIS 1609 (Wis. 1973).

Pincite

Opinion

Per Curiam.

After a review of the record limited by the absence of a transcript of the trial testimony, the court concludes under the circumstances of this case the trial court did not commit reversbile error in failing to include the plaintiff’s requested instructions in its charge to the jury or in submitting the special verdict. In the first place, not every violation of a statute or ordinance constitutes negligence per se. Only where the statute is a “safety statute,” designed to protect a class of persons from a particular type of harm, is a violation negligence per se, and then only when the violation results in that type of harm to someone in the protected class. Meihost v. Meihost (1966), 29 Wis. 2d 537, 139 N. W. 2d 116.

In addition, it appears by the instructions actually given by the trial court, that the plaintiff was assumed to be a licensee rather than a trespasser on the train at the time of his injury. Cf. Shea v. Chicago, M., St. P. & P. RR. Co. (1943), 243 Wis. 253, 10 N. W. 2d 135. And finally, the question of whether the defendant [770]*770had a duty to warn of impending movement is dependent upon whether harm resulting from the failure to warn should have reasonably been foreseen as probable by the defendant. See: Cirillo v. Milwaukee (1967), 34 Wis. 2d 705, 150 N. W. 2d 460. Without the benefit of the trial transcript to apprise this court of the actual circumstances surrounding the incident, it is impossible to make such a determination. See: Schimke v. Milwaukee & Suburban Transport Corp. (1967), 34 Wis. 2d 317, 149 N. W. 2d 659.

The judgment is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

After a review of the record limited by the absence of a transcript of the trial testimony, the court concludes under the circumstances of this case the trial court did not commit reversbile error in failing to include the plaintiff’s requested instructions in its charge to the jury or in submitting the special verdict. In the first place, not every violation of a statute or ordinance constitutes negligence per se. Only where the statute is a “safety statute,” designed to protect a class of persons from a particular type of harm, is a violation negligence per se, and then only when the violation results in that type of harm to someone in the protected class. Meihost v. Meihost (1966), 29 Wis. 2d 537, 139 N. W. 2d 116.

In addition, it appears by the instructions actually given by the trial court, that the plaintiff was assumed to be a licensee rather than a trespasser on the train at the time of his injury. Cf. Shea v. Chicago, M., St. P. & P. RR. Co. (1943), 243 Wis. 253, 10 N. W. 2d 135. And finally, the question of whether the defendant [770]*770had a duty to warn of impending movement is dependent upon whether harm resulting from the failure to warn should have reasonably been foreseen as probable by the defendant. See: Cirillo v. Milwaukee (1967), 34 Wis. 2d 705, 150 N. W. 2d 460. Without the benefit of the trial transcript to apprise this court of the actual circumstances surrounding the incident, it is impossible to make such a determination. See: Schimke v. Milwaukee & Suburban Transport Corp. (1967), 34 Wis. 2d 317, 149 N. W. 2d 659.

The judgment is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

205 N.W.2d 166, 57 Wis. 2d 769, 1973 Wisc. LEXIS 1609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-chicago-north-western-railway-co-wis-1973.

Opinion

Related

Cite This Page — Counsel Stack