O'Brien v. Wisconsin Central Railway Co.

Carsoday, C. J. We cannot say that there was any error-in refusing to submit to the jury the question whether the defendant was negligent in failing to keep a lookout in the direction in which the train was going at the time. The facts are given in the foregoing statement. The engineer was on the lookout on his side of the train all the time as they approached Seventh avenue. The mere fact that the fireman, in pursuance of the requirements of his duties, just before reaching that avenue, got down on the deck, where he could not look ahead, cannot be regarded as negligence, under the circumstances stated. 2. But there is evidence tending to prove that the train was at the time going at the rate of more than six miles per hour. The statute declares, in effect, that “no train or locomotive shall go faster” in any city or village “than at the rate of six miles per hour,” until it has “passed all the traveled streets thereof.” Sec. 1809, Stats. 1898. But counsel for the defendant -contend that the next section of the statute makes an exception to the general rule, and permits a speed of fifteen miles an hour, and only requires gates to “be placed [11] and maintained upon sneb street crossings” when directed by tbe city or village authorities (sec. 1809a, Stats. 1898) ; in other words, that the statute authorized a speed of fifteen miles an hour without gates, but simply required railway companies to construct gates when directed to do so by the city or village. In support of such contention, counsel seem to rely upon Nolan v. M., L. S. & W. R. Co. 91 Wis. 16, 22, 23, 64 N. W. 319. It was there held that the statute had no application to unincorporated villages, but it was there said, in effect, by our late Brother PiNNEY, that the two statutes must be construed together; that the act from which the last section was taken is entitled “An act to limit tlve rate of speed of railroad trains and locomotives in incorporated villages and cities” (ch. 467, Laws of 1891); that railway corporations were thereby relieved from slowing down all trains in cities and villages to six miles an hour, “on condition that some adequate security should be afforded in the case of an increased rate of speed to fifteen miles an hour, and to that end it was provided,” among other things, in the language of the statute, “that gates shall first be placed and maintained upon such street crossings within cities and incorporated villages over which trains shall pass, as the public authorities of any such city or village may direct.” Certainly, the opinion of Mr. Justice PiNNEY does not bear the construction placed upon it by counsel. But it is unnecessary to discuss the question as to the meaning of the sections of the statutes cited,, since it is fully covered by the opinion'of Mr. Justice Dodge. in the recent case of Schroeder v. W. C. R. Co. 117 Wis. 33, 44, 45, 93 N. W. 837, 840, 841. It was there expressly “held that the two statutes should be construed together, and required a railroad passing through an incorporated city to operate its trains over street crossings at not to exceed six miles per hour where no gates had been erected as authorized by the latter section.” The evidence was certainly sufficient to take the case to the jury on the question whether the train was at the time running at an unlawful rate of speed. Por [12] the purpose of this appeal, we must assume that it was running at an unlawful rate of speed. 3. This being so, we cannot say, as a matter of law, that such unlawful rate of speed was not the proximate cause of the injury and death of the child. Of course, a child of such tender years is not chargeable with contributory negligence. If it is claimed that the parents were, that would, at least, be a question for the jury. Hoppe v. C., M. & St. P. R. Co. 31 Wis. 357, 21 N. W. 227; Hooker v. C., M. & St. P. R. Co. 76 Wis. 542, 44 N. W. 1085. The liability of a railway train running over pedestrians, and especially children, in cities and villages, is, of course, much greater than in the country. The object of the statutes so limiting the rate of the speed of trains in cities and villages was to prevent such injuries. The question of proximate cause was properly for the jury, under appropriate instructions from the court. By ihe Court. — The judgment of the circuit court is re-. versed, and the cause is remanded for a new trial. SiebecKee, J., took no part.