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evidence being received under the declara- , amount due and demand a deed is of no imtion? (2) Did the court err in permitting portance, since he never undertook to avail Exhibits C, D, E, and F to be received in himself of the right. At the time plaintiff evidence? (3) Did the court err in denying brought suit, he, and not the defendant, was defendant's motion to strike out the answer in default. It was not necessary that deof witness Carpenter to the question, "Were fendant should have had a perfect title at you ever notified by Mr. Riblet or Mr. George the time of making the contract. It is sufF. Daenzer of the perfection of those titles?" ficient "that the contract is made by the (4) Did the court err in not filing findings vendor in good faith, and that he has such of fact and law before entry of judgment? an interest in the subject-matter of the con(5, 6) Did the court err in ordering judgment tract, or is so situated with reference thereto be entered for the plaintiff ? (7) Did the to, that he can convey a good title at the court err in denying defendant's motion to proper time.” 29 Ency. of Law, 608; Dresel vacate the judgment rendered herein? (8) v. Jordan, 104 Mass. 407. Did the court err in allowing plaintiff to put The judgment is reversed, and a new trial in evidence concerning the title of the land ordered. described in Exhibit A?

[1-3] The brief in which defendant claims to have presented the points of law deemed material in alleged compliance with circuit FOX v. CHICAGO, ST. P., M. & O. RY. CO. court rule 26 is not made a part of the rec- (Supreme Court of Wisconsin. Nov. 14, 1911.) ord, and is not therefore before us for con- 1. RAILROADS ($ 348*)—PERSONS ON TRACKsideration. The rule, however, as well as

PERIL-EVIDENCE.

In an action for death of a watchman at the statute, contemplates the filing of re.

a railroad crossing, evidence held insufficient quests which shall apprise the court of the to warrant finding that the members of the demand for such findings. Doubtless coun. switching crew on the engine by which decedent sel in this instance relied upon the requests peril on the track in front of the moving engine,

was struck must have seen him in a position of for findings filed by plaintiff, which, in our if they kept a lookout in approaching and passopinion, were of no advantage to him. Only ing over the crossing, and were therefore guilty the party whose requests are refused is en

of gross negligence. titled to complain. We are also of the opin- Dec. Dig. § 348.*]

[Ed. Note.-For other cases, see Railroads, ion that there was no such abuse of discretion in denying the motion to vacate the

2. RAILROADS_(8 312*)—PERSONS ON TRACK

DEATH OF WATCHMAN-GROSS NEGLIGENCE judgment as to warrant the reversal of the -OMISSION TO KEEP LOOKOUT. order.

In order to predicate gross negligence on (4-6) It follows that the only questions the failure of those running a switch engine

over crossing to keep a lookout for persons on properly presented for our consideration are the crossing, it must appear that the passing those raised by the assignments of error of the crossing without lookout, under the cirbased upon exceptions to the rulings of the cumstances, was such reckless and wanton concourt upon the admission of testimony. duct as to suggest that the operatives of the Markey v. Life Ins. Co., 164 Mich. 350, 129 rights and safety of persons whose peril of be

engine were wholly indifferent as regards the N. W. 694. We are of the opinion that the ing injured they must have known. court did not err in overruling defendant's [Ed. Note.-For other cases, see Railroads, objection to the taking of any testimony un- Cent. Dig. $$ 988-1003; Dec. 'Dig. § 312.*] der the declaration. Wright v. Dickinson, 3. RAILROADS ($ 348*)-CROSSING ACCIDENT

EVIDENCE. 67 Mich. 580, 35 N. W. 164, 11 Am. St. Rep.

In an action for death of a railroad watch602. Taken together, we think the assign- man at a crossing, evidence held insufficient to ments fairly present the main question in warrant a conclusion that the engine crew, as the case, viz.: Can the vendee in an execu- they approached the crossing, was apprised of tory contract for the purchase of lands re- other persons from the engine.

any actual or known dangers to decedent or scind the contract and recover the portion [Ed. Note.-For other cases, see Railroads, of the purchase price paid because of de- Dec. Dig. § 348.*] fective title to a portion thereof in advance of the time when, by the terms of the con

Appeal from Circuit Court, Eau Claire tract, the vendor is bound to convey?

County; James Wickham, Judge. In considering this question, it is to be

Action by Garry M. Fox, as administrator borne in mind that this is not a case where of the estate of Dennis E. Fox, deceased, the vendor had no title at all, and was not against Chicago, St. Paul, Jinneapolis & in a position to acquire title, but is a case Omaha Railway Company. Judgment for deof defective title to a portion of the land, fendant, and plaintiff appeals. Affirmed. which was susceptible of being perfected, This is an action to recover damages for and which, according to the undisputed testi- personal injuries to Dennis E. Fox, and for mony, would be perfected by decree in the his death, alleged to have been caused by case pending for that purpose. The fact that the gross negligence of the defendant. by the terms of the contract the plaintiff North Dewey street in the city of Eau was entitled to pay at any time the entire Claire passes over a hill and runs north and

south. In a curve on the hillside, four tracks of the defendant cross North Dewey Street, running in an east and west direction. An interurban railway track on North Dewey Street crosses the tracks of the defendant. There is a sidewalk along the westerly side of North Dewey street, and to the west of the sidewalk is a shanty belonging to the defendant. There is a large amount of travel on this street across the tracks of the defendant, and pedestrians cross the street anywhere. No gates are maintained at this Crossing by the defendant, but by an arrangement between the defendant and the interurban company a night watchman at this point is paid his wages by the interurban company, and has shelter in the shanty of the defendant, and receives his lantern and other supplies from the defendant. For some time prior to February 17, 1908, Dennis E. Fox had been such night watchman; his hours of work being from 6 o'clock in the evening until 6 o'clock in the morning. About 7:30 o'clock on the evening of February 17, 1908, the body of Dennis E. Fox was found lying six or eight feet west of the sidewalk on the west side of North Dewey street, between the two most southerly of the four tracks of the defendant. The legs were severed from the body, and lay between the rails of the southernmost track a few feet east of where the body lay. On the north rail of this track, for a number of feet east of where the body lay, were flesh marks. Mr. Fox was still breathing when discovered, but was unconscious and died in a few minutes. Some cinders had been ground into the skin of the face, and there was a bruise upon the forehead. It appears from the evidence that about 7 o'clock on the evening in question the regular passenger train of the defendant left the depot just east of North Dewey street and passed west over the track on which the body was found. At 7:15, a freight train, consisting of 24 empty logging flat cars, started from the depot and passed west over the crossing on the track next north of the one on which the body was found. Shortly after the freight train pulled away from the station, engine No. 28, a switch engine used in the yards, left a point a little west of the station and passed west over the crossing on the track on which the body was found. Engine No. 28 passed over the crossing after the engine of the logging train had passed it, and while the flat cars were passing it, but before the caboose of this train had passed over the crossing. The plaintiff, a son of the deceased, was a conductor on an electric interurban car. He testified that at about 7:10 o'clock on the evening in question he passed the time of day with his father at a point just east of the sidewalk on North Dewey street and a few feet South of the defendant’s Southern

of the locomotive of the logging train saw the deceased standing in the road between the street railway tracks and the sidewalk to the south of the track occupied by the logging train. He was unable to state positively whether or not the deceased was standing between the rails of the southernmost track of the defendant, or whether or not he stood south of the track. Mr. Fox carried a lighted green lantern in his hand. The brakeman did not observe whether Mr. Fox was facing the logging train. He was unable to see sufficiently distinctly. None of the rest of the crew on the logging train Saw Mr. Fox. On engine No. 28 were the fireman, the engineer, and three brakemen. Their evidence in effect is that the engine backed to its destination; that the tender was before them; that the engineer and fireman were each looking at the track ahead of the tender; that two of the brakemen were also watching the track; that the bell on the engine automatically began to ring when the engine started, and that it continued ringing while the engine was crossing the street; that there was a headlight on the tender, and that the light from it struck the ground about 12 feet in front of the tender; that in coming around the curve the track would be visible from the cab only two or three car lengths in front of the tender; that the posts on the flat cars making up the logging train on the curve made practically a solid obstruction to a view across the cars; that the place where the brakeman testified that he saw the deceased standing was not clearly lighted by the electric lights of the street, and was in the shadow of some tall trees; that none of them saw the deceased or his lantern, that they felt no jar from passing over his body; that the tender was ahead of the engine, and that any jar to the tender could not be felt in the engine cab, and that the engine was not going to exceed six miles an hour when it passed over the street. There was evidence that this engine could have been stopped within 15 or 20 feet when going two or three miles an hour, and within 25 feet if going 12 miles an hour. Engine No. 28 had a sloping tank for the special purpose of giving its occupants a clear view of the track over it. Mr. Fox's lantern and cap were found upon the running board of the tender when the engine arrived at Dells switch, a few miles beyond the street crossing. At the close of the testimony, the court directed a verdict for the defendant, on the ground that the evidence would not warrant an inference that the defendant's agents and employés had been guilty of gross negligence, as alleged in the complaint. This is an appeal from the judgment entered on the verdict as directed.

Fred. Arnold, for appellant. Bundy & WilSIEBECISER, J. (after stating the facts as above). The trial court directed the jury to find that under the evidence adduced no cause of action existed. The complaint charges that the defendant's servants were guilty of gross negligence, and that it caused decedent's death. The argument is made that if such servants on the engine, while crossing the street in question, were keeping a lookout for the decedent they must have seen him in a position of peril of being run down by their engine, and that they must have proceeded deliberately in their course, and have run into him willfully; or that as they passed over the street crossing occupied by the decedent they wholly omitted to keep a lookout for him, and hence in causing his death were guilty of misconduct which, under the circumstances, was gross negligence. The facts and circumstances shown by the evidence fail to furnish a basis for either inference. A summary of the evidence is given in the foregoing statement.

[1] Does the evidence tend to show that the members of the switching crew on the engine must have seen the decedent in a position of peril on the track before the moving engine, if they kept a lookout in approaching and passing over the crossing? All the positive testimony of these employés is that they kept a vigilant lookout for persons at the crossing, and that they did not see the decedent. It is contended that this evidence is wholly overcome by the admitted and the physical facts of the situation bearing on this question. The facts relied on to support this contention are that the crossing was clearly lighted by electric lights located on the side of the street above the crossing, that the headlight on the tender of the engine necessarily illuminated the place where the decedent stood as they approached him, that he had a signal lantern with a green light plainly visible from the engine, and that there was no obstruction that could prevent the men on the engine from seeing him. In view of the conditions at the crossing and decedent's presence, it does not necessarily follow that he was in view of the men on the engine keeping a lookout for persons on the track as they approached and passed onto the crossing. His position may have been obscured, as is claimed, by tree branches, by the foggy and smoky condition of the atmosphere, and the passing logging train interfering with the light. Again, the decedent may have occupied a place outside of the track and outside of the lighted portion of the street, until the engine came into close proximity to him, and he may then have moved suddenly into the place of danger. Nor can it be said that the light of the lantern he had was necessarily visible to the men on the engine. This may have been extinguished, or have been obscured in some way by the position in which he carried it. Under the circumstances, it would be a violent inference to hold that these men, in fact, saw the de

looking as they testify they were. Nor do the conceded facts and physical conditions of the situation presented necessarily impeach the evidence of the witnesses so as to Warrant the conclusion that their evidence is wholly incredible. We perceive no merit in appellant's contention upon this branch of the case, and consider that the circuit court was justified in holding, as matter of law, upon the evidence of the switching crew that they in fact kept a lookout, as they assert, and that they did not see the decedent, and hence were not guilty of gross negligence in this respect. [2] The further claim is urged that the jury in the consideration of the evidence would have been justified to conclude that, while in the act of running this engine and tender over the crossing, the men in charge of the engine omitted to keep a lookout for persons upon this crossing, and that such omission on their part constituted gross negligence in the light of the imminent danger to persons from the engine passing over the crossing. To predicate gross negligence on this ground, it must appear that the passing of this crossing without a lookout being kept, with an engine as here shown, was such reckless and wanton conduct as to suggest that the men on the engine were wholly indifferent as regards the rights and safety of persons whose peril of being injured they must be held, under the circumstances, to have known. “The danger of inflicting a personal injury upon a person by the conduct of another must be such as to reasonably permit of a belief that such other either contemplated producing it, or, being conscious of the danger that it would occur, imposed that danger upon such person in utter disregard of the consequences, to warrant saying, reaSonably, that the circumstances indicate a willingness to perpetrate such injury.” Bolin v. Chicago, St. P., M. & O. R. Co., 108 Wis. 333, 84 N. W. 446, 81 Am. St. Rep. 911; Wilson v. Chippewa Valley E. R. Co., 120 Wis. 636, 98 N. W. 536, 66 L. R. A. 912; Haverlund v. Chicago, St. P., M. & O. R. Co., 143 Wis. 415, 128 N. W. 273. [3] The evidence showing the use of this crossing by the public at the time in question is wholly barren of anything tending to show that those running the engine were necessarily informed that they would inflict injuries upon a person in passing over it at the speed and in the manner they traveled. It appears that all approach from the north was intercepted by the logging train, and it was well understood that it was the decedent's duty to guard the crossing, and to warn people to keep off it to avoid the danger of passing trains. These facts refute any claim that the engine crew, as they approached the crossing, were apprised of any actual and known dangers to persons from this engine. The inferences from all the facts and circumstances negative any grounds tending to show that there was such imminent danas to make an omission to keep a lookout in

driving the engine over it gross negligence. Upon any theory of the facts, it is clear

that the plaintiff has failed to adduce evi

dence tending to establish a cause of action

for gross negligence. The circuit court prop

erly dismissed the complaint. Judgment affirmed.

McGINNIS v. NORTHERN PAPER MILLS. (Supreme Court of Wisconsin. Nov. 14, 1911.)

For majority opinion, see 132 N. W. 897.

WINSLOW, C. J. (dissenting). The trial judge granted a new trial in this case because he thought he had erred in charging the jury that the guard required by section 1636.j of the Statutes must be sufficient to Safeguard the employé while discharging his duties. He thought that this instruction Was Contrary to the doctrine of the cases of West v. Bayfield Mill Co., 128 N. W. 992, and Willette v. Rhinelander Paper Co., 130 N. W. 853, recently decided by this court, and hence that there was prejudicial error. I think the circuit judge was right in his charge and wrong in his conclusion as to the effect of the cases named. Those cases hold, in substance, that an employer is not an insurer of his employés' safety under the act named, and that the instruction given in the West Case, to the effect that the employer must “guard the gearing safely, that the persons who work about the building should be secure against danger or violence while performing their work,” could only be construed as meaning that the employer must insure the employé against injury from the gearing.

I do not regard the instruction in the present case as the equivalent of the instruction in the West Case, even standing alone; but, furthermore, it will be seen in the present case that the circuit judge in that immediate connection told the jury that the question was whether the gearing was sufficiently guarded so as to safeguard an employé while doing an act which the employer should reasonably anticipate he might perform in the discharge of his duty, and while the employé was in the carcreise of ordinary care. There was no such limitation or qualification in the West Case. Had there been, I do not think the case would have been decided as it was; for I am quite certain I should not have concurred in the holding that there was error. To safeguard an employé while discharging his duty in the exercise of ordinary care is not, as it seems to me, the equivalent of guarding the gearing so that the employé shall be secure from danger or violence while performing his work. One instruction requires the employé to be exercising usual and ordinary care; the other does not, but carries the necessary implication that wheth

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WINSLOW, C. J. This is an action to foreclose a mechanic's lien upon defendants' house for the purchase price of a furnace. There is absolutely no dispute as to the facts, and the only question presented is whether there was a breach of the warranty under which the furnace was sold. The contract of Sale was oral. The furnace was what is called a “combination furnace"— that is, one in which either coal or wood may be used as fuel ; and it was warranted to Droperly heat the defendants' house in the coldest weather. As matter of fact, it would not properly heat the house in the coldest weather when fired with wood only, except by means of excessive firing and attention. By using coal or coke as fuel it will, however, heat the house in accordance with the warranty.

Under these circumstances, was there any breach of the warranty? The trial court decided this question in the negative, and with that decision this court agrees. There was no express undertaking that the furnace would heat the house in the coldest weather when wood alone used as fuel, but only that

it would properly heat the house at that sa standing car from which he had just alighted, time. The fact is undisputed that it will it was not material to his right to recover do so when the proper fuel is used.

whether he had ceased to be a passenger, and It is

was a mere traveler at the time of his injury, considered that it was the duty of the de the care required by both plaintiff and the fendants to use that fuel.

street car company being the same in either Judgment affirmed.

event; each being bound to anticipate that an injury might result if care was not exercised; and each being required to exercise reasonable care to avoid such injury.

[Ed. Note.-For other cases, see Street RailCOEL V. GREEN BAY TRACTION CO.

roads, Cent. Dig. $$ 195-200; Dec, Dig. $ 93.*] (Supreme Court of Wisconsin. Nov. 14, 1911.) 6. STREET RAILROADS ($ 93*) – INJURIES TO

TRAVELERS-NEGLIGENCE-PROXIMATE CAUSE 1. EVIDENCE (8 586*)-WEIGHT-STREET RAIL -ANTICIPATED INJURY.

ROADS–SOUNDING GONG NEGATIVE Evi. Plaintiff, after alighting from a standing DENCE."

car, passed around the end thereof, and, failOn an issue whether a gong of defendant's ing to hear a car approaching in the opposite street car, by which plaintiff was struck, was direction, started to cross the parallel track, sounded as the car approached a crossing, a and as he did so stumbled and fell, and was police officer on the car, who saw the motorman struck and injured by a car approaching, on set the brake when the accident occurred; tes that track at a high speed, without warning. tified that no gong was sounded, because as Held, that it was not essential to plaintiff's resoon as the accident happened hé remembered covery that the fact that he was crossing the the fact, and knew that the question of warning track in front of the approaching car, and might by bell or gong was an important one; that stumble and fall, should have been anticipated he supposed the injury was caused by car go- by the motorman; it being sufficient that the ing in the opposite direction, because no gong motorman ought reasonably to have anticipated was sounded on the one he was on; that his injury to some one as the probable result of his hearing, was good, and his attention was not passing the standing car at a high speed without diverted. Plaintiff testified that he was listen- ringing the bell. ing for a car coming in the opposite direction [Ed. Note.-For other cases, see Street Railfrom the one from which he had alighted just roads, Cent. Dig. $195-200 ; Dec. Dig. $ 93.*] prior to his injury, because he knew one might be coming at any time, and that he heard no 7. STREET RAILROADS ($ 102*) - INJURIES TO gong or bell. Held, that such testimony was

TRAVELERS-NEGLIGENCE-PROXIMATE CAUSE not negative in the sense that it was overborne,

-CAUSAL CONNECTION. as a matter of law, by testimony of defendant's

Plaintiff was injured by being struck by a employés that the gong was sounded.

passing street car on the other track, as he (Ed. Note.-For other cases, see Evidence, passed around the end of the standing car from Cent. Dig. 98 2432–2435; Dec. Dig. $ 586.*]

which be had just a lighted. As he passed

around the end of the standing car and ap2. EVIDENCE (8 586*)—"NEGATIVE EVIDENCE" proached the parallel track, he stumbled and -WEIGHT.

fell. The car by which he was struck passed Testimony is negative only when it tends at a high speed and without signals. Plainto prove the nonexistence of a fact by reason tiff was not run over, but was struck such a of a mere failure of a witness to observe and blow by the front bumper of the car as to break remember its existence, but, if the evidence as- his thigh bone. Held, that there was sufficient serts such an observation as to the existence causal connection between the high speed of the of the fact and the recollection of what that car and plaintiff's injury to justify a conclusion observation was, denial of its existence based that it was the proximate cause of the injury. thereon is affirmative evidence that the fact does

[Ed. Note.-For other cases, see Street RailDot exist.

roads, Cent. Dig. $$ 186, 194, 200, 203; Dec. [Ed. Note.-For other cases, see Evidence, Dig. § 102.*] Cent. Dig. 88 2432–2435; Dec. Dig. $ 586.*]

8. STREET RAILROADS (8 102*) — INJURY AT 3. STREET RAILROADS (8 93*) — INJURIES TO CROSSING-ACCIDENT.

TRAVELERS-PASSING STANDING CARS-DAN Plaintiff, after alighting from a standing GEROUS SPEED.

car, passed around the rear end and started to Where a car by which plaintiff was struck, cross the adjoining track, when he stumbled and as he was passing around the end of a standing fell, and was almost immediately struck by a car from which he had just alighted, was run- car moving at a high speed, and without warnning at a speed usual in the middle of a block, ing; the blow being severe enough to break his and it required 120 feet or more in which to thigh bone. Held, that plaintiff was not prestop the car, the jury properly found that it cluded from relief on the theory that his injury was run past the standing car at a dangerous was caused by his stumbling on the track, which speed.

was a pure accident. [Ed. Note.-For other cases, see Street Rail (Ed. Note.--For other cases, see Street Railroads, Cent. Dig. $$ 195–200; Dec. Dig. $ 93.*] roads, Cent. Dig. $8 186, 194, 200, 203; Dec. 4. STREET RAILBOADS ($ 93*) - OPERATION

Dig. § 102.*] PASSING STANDING CARS.

9. NEGLIGENCE ($ 61*) — NEGLIGENT ACTS Where a street car is passing a standing PROXIMATE CAUSE. car discharging passengers, the motorman of Two negligent acts may concur to constithe passing car is bound, not only to have his tute the proximate cause of an injury. car under full control, but is required to keep a sbarp lookout, and give warning by bell, gong, Cent. Dig. 88 74, 75; Dec. Dig. § 61.*]

(Ed. Note.- For other cases; see Negligence, or whistle of its approach. [Ed. Note. For other cases, see Street Rail-10. STREET RAILROADS (§ 117*)—INJURIES TO

TRAVELERS-CONTRIBUTORY NEGLIGENCE. roads, Cent. Dig. $$ 195-200 ; Dec. Dig. $ 93.*]

When plaintiff alighted from a street car, 5. STREET RAILBOADS ($ 93*)-INJURIES TO there was a distance of 5 feet 9 inches between TRAVELERS-PASSING CARS.

the nearest rails of the two tracks and a clear Where plaintiff was injured by being struck space of 2 feet 242 inches between the cars when by a street car as he passed around the end of 'they passed each other. Plaintiff listened for

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