Carmer v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

WiNsnow, J. Had the plaintiffs’ intestate been an adult attempting to climb between the cars under the circumstances stated, it seems that he would have been guilty of contributory negligence as a matter of law. Flynn v. Eastern R. Co. 83 Wis. 238. There is no such hard and fast rule,, however, applicable to children of the tender age of the intestate. Generally the question as to the degree of diligence required of the child must be submitted to the jury. Whalen v. C. & N. W. R. Co. 75 Wis. 654. Certainly the present is not a case where the court can say, as a matter of law, that the child was guilty of contributory negligence. McVoy v. Oakes, 91 Wis. 214. Contributory negligence not being shown as matter of law, the sole question is whether there is proof of negligence on the part of the employees of the railway company sufficient to go to the jury. There was much proof tending to show that the place where the boy was injured was a licensed way, within the decisions of this court. There seemed to be no substantial dispute on the question, but, even if there was a dispute, there was certainly ample evidence to require the submission of the question to the jury. Mason v. C., St. P., M. & O. R. Co. 89 Wis. 156. Not only did the proof tend to show that there was a licensed way, but it also tended strongly to show that the entire space between the depot and the crossing, including the 517 tracks, and the ground between the tracks, was almost constantly used by grown persons and children passing and re-passing with the knowledge of the railway employees, and without objection to such use. Whatever may be the law in other jurisdictions, it is very well settled in this state that trains cannot be operated in such places in the same manner that they may be lawfully operated in the country. Such a state of facts calls for the exercise of some additional care in the movement of trains. The care to be exercised is undoubtedly that degree of care which is reasonably adequate to meet and avoid the dangers which ought to be anticipated under the circumstances. Townley v. C., M. & St. P. R. Co. 53 Wis. 626; Whalen v. C. & N. W. R. Co. 75 Wis. 654; Johnson v. Lake Superior T. & T. Co. 86 Wis. 64. It was clearly a question for the jury in the present case to decide whether the trainmen ought, in the exercise of due care, to have anticipated that a child might be present on the track or on the cars when the train started, and, if so, whether some greater degree of care should have been exercised in giving warning of the starting of the train, or some greater precaution taken to guard against such an accident. The train had stood in that place for nearly an hour, blocking all the communication between the two sides of the village. The proof was ample to show that grown persons and children frequently crawled under or climbed over trains at that place under like circumstances. Upon this very day the conductor of the train saw children playing between the tracks and attempting to ride on the cars of his train when it pulled in. The question whether he and his colleagues in the management of the train exercised that degree of care when the train pulled out which ought to have been exercised, in view of the dangers to be reasonably anticipated, was a question for the jury. By the Court.— Judgment reversed, and action remanded for a new trial.