Wickham v. Chicago & Northwestern Railway Co.

Newmah, J. It is urged for the appellant that the evidence produced on his behalf was sufficient to require the [25] submission of tbe case to the jury. ' It is claimed that the evidence sufficiently establishes the negligence of the defendant in four several particulars: (1) It failed to give the customary signals of the approach of its passenger train; (2) the employees on the train failed to keep a proper lookout; (8) the train was run at an unusual and dangerous rate of speed; and (4) the road was unfenced. It must be conceded that, if there was evidence sufficient to support a verdict for the plaintiff on either of such grounds of negligence, the case should not have been taken from the jury. The settled rule is that a verdict for the defendant should not be directed unless the evidence is practically undisputed and all one way, so that, by giving it the construction most favorable to the plaintiff which it will reasonably bear, including all reasonable inferences from it, it is insufficient to support a verdict in favor of the plaintiff. Jackson v. Jacksonport, 56 Wis. 310; Radmann v. C., M. & St. P. R. Co. 78 Wis. 22; Kruse v. C., M. & St. P. R. Co. 82 Wis. 568. 1. Did the train give the customary signals of its approach? Eour witnesses testified affirmatively that the usual signals were given, both by sounding the whistle and ringing the bell. They testify that they heard the signals. On the other hand, two witnesses testify that they heard no signals. They were where they could have heard, but gave the matter no attention. Would this testimony support a verdict for the plaintiff on this question ? Apparently, the witnesses are of equal credibility, and had equal opportunity of hearing. In such case the rule applies: “ The positive testimony of one credible witness to a fact is entitled to more weight than that of several others who testify negatively, or, at most, to collateral circumstances merely persuasive in their character.” 3 Greenl. Ev. § 375; Ralph v. C. & N. W. R. Co. 32 Wis. 177; Pennoyer v. Allen, 56 Wis. 502; Draper v. Baker, 61 Wis. 450; Hinton v. Cream City R. Co. 65 Wis. 323; Joannes v. Millerd, 90 Wis. 68. Where [26] the evidence to prove a fact is direct and positive and satisfactory and the evidence to disprove it is purely negative, the positive proof must prevail. Cook v. Racine, 49 Wis. 243. The evidence that the signals were given was practically undisputed. 2. Did the employees on the train fail to keep a proper lookout for persons on the track ? The engineer of the train testifies that he was keeping a lookout ahead of his train, but that he did not see the boy. His failure to see the boy may, perhaps, be explained, consistent with the fact of a proper lookout, by this consideration: that the boy was concealed from his view by the passing freight train until his engine was upon Potter avenue crossing, and only a few feet from the boy, who, from his nearness to the engine, was not then fairly within the field of his vision. The best possible lookout could not have enabled him to discover the boy in time to have stopped his train, or to have materially slackened its speed before it struck him. 3. Was the train running at an unlawful rate of speed? It was estimated by the engineer that it was running at a speed of about ten miles an hour. The rate of speed of trains in cities and villages is limited by law to fifteen miles an hour. Laws of 1891, ch. 467. No doubt a less rate of speed may become unlawful by reason of some peculiar danger of the situation. No such situation is disclosed by the evidence. 4. Did the absence of a fence cause the accident? Of course, the absence of a fence could not be the active, producing cause of the accident. It was merely a condition which possibly rendered the accident more likely to happen. In that sense it might be the cause of the accident. Ordinarily a condition is a remote cause. The absence of a fence might be the proximate cause, in the sense of the law, of an injury to domestic animals, such as are usually restrained by fences. The purpose of the railroad fence, as expressed [27] in the statute itself, is “ to prevent cattle and other domestic animals from going on such railroad.” E. S. sec. 1810. Its purpose is not, at least primarily, to prevent persons from going upon the railroad. A fence is a clumsy contrivance for the exclusion of persons. Especially for the exclusion of boys of the age of the plaintiff’s decedent, the common railroad fence is ineffective and delusive. Boys climb fences with such ready facility. To exclude them the fence must be both tight and high. While the common fence might serve some useful purpose as a warning, it must' be inadequate for the purpose of exclusion. It would seem that, for the purpose of a warning to the deceased, the lowered gates and the passing freight train should have been ample. But if it shall be held that to exclude persons from going upon the track is a purpose of the railroad fence, and that the deceased lacked the discretion which should make him responsible for ordinary care, it would seem that the same rules should be applied as in tbe case of domestic animals. It must then, at least, appear with reasonable certainty that a fence would have prevented the accident; else the want of a fence cannot be the cause of the accident. So, it is held in the case of domestic animals, that in order to show that the absence of a fence was the cause of the injury it must be made to appear that the animal came upon the track at a point where the company was bound to maintain a fence; and that, if the animal came upon the track from adjoining depot grounds, the company is not liable. Bennett v. C. & N. W. R. Co. 19 Wis. 145; Bremmer v. G. B., S. P. & N. R. Co. 61 Wis. 114. This case is entirely without evidence to show where the boy came upon the track. He first appears upon the track. Whether he came from the adjoining depot grounds of Bay Yiew station, or from Potter avenue crossing, is uncertain. So, on this theory of the purpose of the railroad fence, the evidence fails to show that the absence of the fence was the cause of the death of the plaint [28] iffs decedent. It is not determined whether the defendant was required to. fence its road at the place of the accident. It was very near to — perhaps included in — reasonable depot grounds. It was within the limits of a city, where danger from domestic animals upon the track would be comparatively small, and the fencing of the road might he inconvenient to the public traffic. There were several errors alleged on the exclusion of evidence, but none of them seem to be of sufficient importance to require treatment at length, in the view which has been taken of the case. By the Court.— The judgment of the circuit court is affirmed.