Townley v. Chicago, MilwauKee & St. Paul Railway Co.

11 N.W. 55, 53 Wis. 626, 1881 Wisc. LEXIS 300

• Court: Wisconsin Supreme Court
• Decided: December 13, 1881
• Status: Published

Opinion

Cassoday, J.

Was there an absence of negligence on the part of the defendant? There is evidence tending to show, in effect, that the yard-master saw Rosa standing still on the track at or near “ switch B,” the place where she was caught, before the cars started back, and that he was, at the time, about 220 feet east of her, with the cars over 100 feet west of her, and that he, knowing she was in danger, hallooed to the train men at the time, and again when the cars got within about sixty feet of her, or opposite “ switch A,” where the switchman stood; that she was on the same side of the track as the lever of “ switeh A; ” that when the train stopped going west, with the rear end of the rear car some fifty feet west of “ switeh A,” the brakeman got down from the top of the cars and uncoupled the four rear cars, and then got upon the west end of the uncoupled car furthest from the little girl, and took hold of the brake at the west end of that car, with his face towards the west; that in the mean time the switchman had got down from the .top of the cars and passed to the lever of “switch A,” some sixty-four feet west of where the little girl was injured, and then turned that switch so as to send the four uncoupled cars onto the north side track, and thenee onto the coal track at or near “ switeh B,” where the little girl was injured ; and that thereupon, and after looking to see if “ switch B,” was set so as to turn the loose cars onto the coal track, the switchman signalled the engineer of the train to back the same, which he did.

Erom portions of the testimony it seems to be a little uncertain whether the signal to back the train was before or after the switchman looked down the track to “switeh B.” He does testify, in effect, that when he looked back —• down the track — to “switch B,” he did not see the little girl; that she might have been on this side of the track, and he would not have noticed her, as he would be watching his switch,— the lumber-yard switch that goes onto the coal track; and that when he first saw her her hands were up, and the end of the car within a half car length of her. The switchman also testified: “ It is my duty to look up on that track to see if it is clear, and if it is perfectly safe for the cars to come back; that is what I am there for. And after I see that it is safe, I give the signal to back. It is my duty to see that the track is clear; that there is nobody on it. That is what I did this time.” With this measure of duty resting upon the servants of the defendant, at the time and place in question, we cannot hold, as a matter of law, upon the evidence in the case, that the defendant was free from negligence in committing the injury. If this little girl, seven years of age, was at or near “ switch B,” with her foot caught between the rail and the guard, while the train was standing still, and it was his duty to see that the track was clear and nobody on it before giving the signal for the train to back, then certainly there was some evidence of failure of duty on his part in not discovering her and removing her from the track before giving the signal.

We do not wish to be understood as expressing any opinion on the facts, except that, on the question of defendant’s negligence, there was evidence sufficient to go to the jury. Whether the little girl was in fact on the track at the time of turning the switch or giving the signal, or whether the switchman ought to have seen her before giving the signal, or immediately after, and then have given the alarm sooner than he did, or have rescued her by his own efforts, or whether the yardmaster should have gone to her relief when he first saw she was in danger, or whether the brakeman acted with all the circumspection which his duty required, were, in our opinion, all questions peculiarly within the province of the jury.

In Ireland v. Plank Road Co., 13 N. Y., 533, Johnson, J., said: “It by no means necessarily follows, because there is no conflict in the testimony, that the court is to decide the issue between the parties as a question of law. The fact of negligence is very seldom established by such direct and positive evidence that it can be taken from the consideration of the jury and pronounced upon as a matter of law. On the contrary, it is almost always to be deduced as an inference of fact from several facts and circumstances disclosed by the testimony, after their connection and relation to the matter in issue have been traced, and their weight and force considered. In such cases the inference cannot be made without the intervention of a jury, although all the witnesses agree in their statements, or there be but one statement, which is consistent throughout.”

_“ Generally, what is and what is not- negligence is a question for the jury. "When the standard of duty is a shifting one, a jirry must determine what it is,-as well as find whether it has been complied with.” Pennsylvania Railroad Co. v. Barnett, 59 Pa. St., 263.

“Negligence, in one sense, is a quality attaching to acts dependent upon and.arising out of the duties and relations of the parties concerned, and is as much a fact to be found by the jury as the alleged acts to which it attaches by virtue of such duties and relations.”. T. & P. Railway Co. v. Murphy, 46 Texas, 366. See also Smith v. Fletcher, L. R., 9 Exch., 64; Bridges v. Directors of N. L. Railway Co., L. R., 7 E. & I. App. Cases, 213; Kenworthy v. Ironton, 41 Wis., 647; Langhoff v. Railway Co., 19 Wis., 489; Spencer v. Railroad Co., 17 Wis., 487; Thurber v. Railroad, Co., 60 N. Y., 326; Frick v. Railway Co., 5 Mo. App. Cases, 435.

In Langhoff v. Railway Co., Dixon, C. J., said: “ It [negligence] is not a fact to be testified to, but can only be inferred from the res gestee — from the facts given in evidence. Hence it may, in general, be said to be a conclusion of fact to be drawn by the jury under proper instructions from the court. It is always so where the facts, or, rather, the conclusion, is fairly debatable, or rests in doubt.”

Judge Coolet discusses this question in his work on Torts, and concludes: “If the case is such-that reasonable men, unaffected by bias or prejudice, would be agreed concerning the presence or absence of due care, the judge would be quite justified in saying that the law deduced the conclusion accordingly. If the facts are not ambiguous, and there is no room for two honest and apparently reasonable conclusions, then the judge should not be compelled to submit the question to the jury as one in dispute.” Page 670.

We are clearly of the opinion that the facts disclosed in the record do not bring the case within the rule authorizing the court to take the question of the defendant’s negligence from the jury. It seems to he pretty well settled that a railroad company must provide for a careful lookout in the direction that the train is moving, in places where people, and especially where children, are liable to be upon the track. If they do not, and a person has been injured, then the company may, in the absence of contributory negligence, be held liable. Butler v. Railway Co., 28 Wis., 487; Ewen v, Railway Co., 38 Wis., 613; Farley v. Railway Co., 9 N. W. Rep. (Iowa), 230; Frick v. Railway Co., 5 Mo. App., 435; Cheney v. Railroad Co., 16 Hun, 415.

2. Was the plaintiff guilty of contributory negligence? It is urged that the plaintiff, Rosa, was violating the last clause of section 1811, R. S., in walking upon the “switch path,” and in attempting to cross the side tracks as she did, and that therefore there can be no recovery. The clause does make it unlawful for a person, not “ connected with or employed upon the railroad, to walk along the track or tracks of any railroad, except when the same shall be laid along public roads or streets.” This section seems to have been designed to prevent persons walking upon or between the rails of the track, or so near thereto as to be in danger of being struck by passing trains; but we do not think it is applicable to persons passing directly from Washington avenue in question onto the platform of the depot in question, and thence along that platform onto the “switch path,” and from there across the side tracks to the public streets beyond. We must, therefore, determine this appeal as though that provision had not been enacted, for the exception in case the track is laid along public roads or streets is to have some effect.

Under a similar statute in Missouri it‘has quite recently been held that “ though it is unlawful for one not connected with a railroad to walk upon its tracks, and it is presumed that every one will obey the law, yet this will not relieve the railroad corporation from the duty of keeping a careful lookout while running its trains upon the streets of a city.” Frick v. Railway Co., 5 Mo. App., 435. With that proposition we fully concur. See also Daley v. Railroad Co., 26 .Conn., 591. The brakeman testified in effect that he had seen the little girl in the yard before, and had seen other children there, and had ordered them off the track; that there was á pathway where the little girl went; and that since he had worked there he had seen people going across the tracks onto the streets — had seen them all the time for the last seven years, men, women and children. The plaintiff also offered to prove, in effect, that persons living near the track west of the depot, and other people, men, women and children, had, for some years immediately before the accident, been in the habit of passing back and forth, up and down, on the same pathway and in the same direction where the little girl went at the time she was hurt, and that they had been so accustomed to pass, daily and hourly, for several years; all of which was excluded, and exceptions taken.

This excluded evidence tended to prove an implied consent or license on the part of the defendant that persons might pass on foot along the “ switch path ” and across the side tracks to the public streets; and the mere fact that other children had been ordered off the track would not conclusively prove that no such consent or license had been granted. If such custom existed, and men, women and children were daily and hourly passing over the same pathway, it certainly had an important bearing, not only upon the question whether Rosa was guilty of contributory negligence at the time, but whether the defendants were exercising ordinary «are at the time. If men, women and children were daily and hourly passing, the ser- • vants of the defendant in chai’ge must have known the fact, and hence were called upon to exercise more vigilance and care than though such passage seldom occurred. If all classes of people, men, women and children, and especially those living up tbe track in the vicinity of Rosa's home, were accustomed daily and hourly to pass over this pathway, then can we say, as a matter of law, that there was a lack of ordinary care in Rosa in attempting to do the same thing? Certainly not, unless her tender years were such as to impute negligence to her parents for allowing her to be upon the track at all.

The case is quite similar in principle to Johnson v. Railway Co., 49 Wis., 529, where the boy killed was only six years of age, and the judgment of nonsuit was reversed. It has frequently been held that a child of tender years is not to be held to the same rule of care and diligence in avoiding the consequences of the negligent or unlawful acts of others, that is required of persons of full age and capacity. Pennsylvania Railroad Co. v. Kelly, 31 Pa. St., 372; Rauch v. Lloyd, 31 Pa. St., 358; Glassey v. Railway Co., 57 Pa. St., 172; P., A. & M. Pass. Railway Co. v. Caldwell, 74 Pa. St., 421; East Saginaw City Railway Co. v. Bohn, 27 Mich., 503; B. & I. Railroad Co. v. Snyder, 18 Ohio St., 399; Robinson v. Cone, 22 Vt., 213; Railroad Co.v. Stout, 17 Wall., 657; Boland v. Railroad Co., 36 Mo., 484; C. & A. Railroad Co. v. Gregory, 58 Ill., 226; McMillan v. Railroad Co., 46 Iowa, 231.

In Lynch v. Nurdin, 1 Q. B., 29, the plaintiff was but seven years of age, and at the time of the injury was committing a trespass by getting upon the defendant’s cart hitched to his horse, and which had been negligently left by him in the street unattended; and Lord DeNMAN, C. J., said: “Ordinary care must mean that degree of care which may reasonably he expected from a person in the plaintiff’s situation, and this would evidently be very small, indeed, in so young a child. But this case presents more than the want of care; we find in it the positive misconduct of the plaintiff — an active instrument towards the effect.” Page 36. He then reviews the authorities, and concludes that “for these reasons we think that nothing appears in the case which can prevent the action from being maintained. It was properly left to the jury, with whose opinion we fully concur.” Eor these reasons we think the evidence offered was improperly excluded, and that no such want of care was shown on the part of the plaintiff as to justify the court in taking the ease from the jury.

3. But counsel contend that the bill of exceptions is not certified to contain all the evidence, and that we must therefore presume that there was other evidence, not before us, which justifies the nonsuit. The certificate is in these words: “ The foregoing is the substance of all the testimony given on the trial of said action.” The learned counsel for the railroad company has referred us to quite a number of Iowa cases holding similar certificates insufficient. But this is a question of practice, and, with great deference for the Iowa court, we feel justified in following our .own decisions. Besides, we think the distinction made by that court is a little too refined for practical purposes. Here, the. trial judge certifies, in effect, that the bill of exceptions contains “ the substance of all the testimony ” upon which he granted the nonsuit, and yet we are asked to find that he must have granted it upon some other testimony. To so hold would, in our judgment, disregard substance for mere form. It would be wholly impracticable, if not impossible, for any one to procure an exact transcript of every particle of testimony taken upon a trial. It must, at most, be “ the substance of all the testimony,” and a certificate going further must necessarily trench upon the impracticable, if not the impossible. This, we think, is in harmony with the decisions of this court, if not supported by them; and we must therefore hold that, practically, the bill of exceptions is certified to contain all of the testimony given on the trial.

By the Gov/rt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.