Whalen v. Chicago & Northwestern Railway Co.

Lyox, J. I. On the subject of the negligence of the defendant company the learned circuit judge instructed the jury as follows: “Parties managing moving trains must provide a careful lookout in the direction that the train is moving, in places where people, and especially children, are liable to be upon the track. When a train is being drawn by a locomotive, there is always a lookout and means of giving notice and warning to travelers on the track or in — 660 — places of danger of the approach of the train. When a train is being backed, then the train is in such a condition or in such a position that other means of warning are required by the law, and, as I have given out in the rule, there must be some lookout provided, so that, in case parties, especially in localities where women and children are likely to be, where those parties are, they can be warned of approaching danger, if they don’t see it.” It is undisputed that the train which was backed against the plaintiff and injured him, was in a locality where men, women, and children were likely to be upon the tracks, of which fact the employees of defendant operating the train had knowledge, and that, although a brakeman might have been on one of the eight or nine rear cars when the injury was inflicted, he was not there as a lookout, to warn people who were walking on the track of danger, and was not in the performance of any such duty. Such being the testimony, the instruction above quoted is equivalent to an instruction that because the place of accident was so used, and because there was no such lookout provided, the defendant was guilty of negligence. Is the instruction correct? The testimony tends to prove, perhaps does prove, that when the accident happened the train which injured the plaintiff was being operated in the usual and accustomed manner. . It is contended on behalf of defendant that, although the plaintiff was a licensee upon its track, it might still operate its railroad as it had been accustomed to do, and having done so in the present case, the plaintiff has no right of action. There are many cases which, under certain circumstances, hold the rule maintained by the defendant. In those cases, damages have been, refused to a mere licensee injured by a moving train, if the train was being operated at the time in the manner in which it had usually been operated theretofore. Thus, in Hogan v. C., M. & St. — 661 — P. R. Co. 59 Wis. 139, which was an action to recover for injuries to a child under six years of age who had been injured by a train, such child being a mere licensee upon the track, the above rule was applied, for the reason that the persons operating the train would not naturally expect a child to be upon the track at the place of the accident, and were not required to anticipate such injury as the probable result of moving the train. Hence, it was there held that the requirements of ordinary care were complied with by giving the usual signals bj^ bell and whistle, although no lookout or watchman was provided to discover and give warning of danger to persons on the track, such precaution not having usually been taken at that place. Such application of the rule was made upon the authority of numerous adjudications referred to by Mr. Justice Taylor in his opinion in Davis v. C. & N. W. R. Co. 58 Wis. 646. We are still of the opinion that the rule was correctly applied in the Hogan Case. But,in the present case we have a state of facts materially different. Here the injury occurred at a place where those in charge of the train knew that adults and children, in considerable numbers, were likely to be passing, and that, without some precautions being employed to avoid injury, persons, and particularly children, passing there were liable to be injured by the backing of the train. This is more especially true because, although not dark, it was in the dusk of the evening when the plaintiff was injured. The lights were set on the train. The conductor and brakemen were using lighted lanterns, and the train was moving slowly and comparatively noiselessly. Moreover, it was a long train, containing forty cars or more, and the engine was necessarily a long distance, probably seventy or eighty rods from the place where the plaintiff was hurt. This fact might prevent him from hearing any noise the engine might make in pushing the train. It is also doubtful, to say the least, whether any signal, by bell — 662 — or whistle, that the train was in motion, was then being-given. We think the foregoing circumstances bring the case within the rule of Townley v. C., M. & St. P. R. Co. 53 Wis. 626, which is thus stated in the opinion by Mr. Justice Cassoday: “It seems to be 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 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.” We conclude, therefore, that the jury were properly instructed, as matter of law on the undisputed evidence, that the defendant was guilty of negligence in not providing a proper lookout on the freight train which backed upon the plaintiff and inflicted the injury complained of. II. The court submitted to the jury the question whéther the plaintiff was guilty of negligence which contributed proximately to the injury. Certainly there is testimony tending to show such negligence on his part. The real question is, Does the undisputed evidence prove conclusively that the plaintiff was guilty of such negligence? ITe was entirely familiar with the methods of operating trains at that point. When he went upon the scale track, there was sufficient light to enable him plainly to see the cars upon the track ahead of him. Tie thought they were standing still. They probably were standing still when he looked at them. He then allowed his attention to be diverted by the passing engine, and took no further notice of such cars. It was not necessary for him to walk upon the track to reach his home; and hence, when he chose to do so, an obligation of greater diligence was imposed upon him. He walked upon the track at least 100 feet, and the jury might have, found from the testimony that he so walked a much — 663 — greater distance. It is very probable that the cars were in motion nearly all the time he was walking upon the track. The inference of negligence from these facts is a very strong one. The only excuse we discover for allowing his attention to be diverted by the passing engine is that it does not appear he knów that the cars standing upon the track were to be backed north on the Menekaunee branch. ITad he been an adult, with the same knowledge of the manner in which trains were usually operated at that point, we should be strongly inclined to hold that contributory negligence on his part was conclusively proved. Rut he was not an adult. He was a little less than thirteen years of age. Under well-settled rules of law, the court properly submitted to the jury the question of the degree of diligence required of him. Counsel for the defendant have cited many cases in which the courts have held, as matter of law, that children as young as he were chargeable with contributory negligence, but each of these cases stands entirely upon its own facts, and no general rule can be deduced from them which should govern this particular case. The jury, who saw the plaintiff, and heard his testimony, were best able to determine the degree of diligence which should reasonabty be required of him. They have determined that question in his favor, and we cannot, without a violation of legal rules, disturb their findings in that behalf. We must hold, therefore, that the question of contributory negligence on the part of the plaintiff was properly submitted to the jury. III. Only two rulings upon the trial, and these upon objections to the admission of testimony, are urged as grounds of reversal. These will be considered briefly. 1. On the cross-examination of the plaintiff, he was interrogated as to whether he had at any time climbed upon the cars to get a ride. An objection to this question was sustained by the court. He was allowed, however to tes — 664 — tify, on such cross-examination, that he did not attempt to climb upon the cars the night he was injured. He also testified later that sometimes, when the trains were switching there, he got on the freight cars for a ride. We perceive no error in this ruling; and, if it was erroneous, it seems to have been cured by the subsequent cross-examination. 2. In his direct testimony a witness for the plaintiff was permitted, against objection, to testify as to how many people he had seen walking on the tracks at the point of injury in a given time, a year or more after the accident. This would have been incompetent but for the further fact that the plaintiff had before testified that the number of people walking upon the track at the time mentioned by the witness was about equal to the number walking there when he was injured. The matter was of but little importance. We think the testimony of the witness which was objected to was rendered competent by such previous testimony of the plaintiff, as one method of ascertaining the amount of travel there at the time of the accident. By the Court.— The judgment of the circuit court is affirmed.