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CHICAGO, MILWAUKEE & ST. PAUL R. Co.

(Wisconsin Supreme Court, March 18, 1890.) Speed-Statute Limiting Rate in Cities—Construction.-A statute which provides that "in all cities and villages

no train or locomotive shall go faster, until after having passed all the travelled streets thereon, than at the rate of 6 miles per hour," prohibits the running of a train which has entered a city at a rate of speed in excess of that prescribed by the statute although it has not reached a travelled street.

Same-Unlawful Rate-Negligence of Engineer.—In an action for damages for causing the death of plaintiff's daughter, it appeared that the accident occurred on a bridge 138 feet long : that the engineer had an unobstructed view of the bridge from a point 1168 feet distant ; that he saw the deceased and her companions on the bridge when the train was about 960 feet from them; that the train was running at the rate of 25 to 30 miles an hour and could only be stopped in about 1000 feet; that if it had been running at the statutory rate of 6 miles per hour, (the locality being within the limits of a city) it might have been stopped within 600 or 700 feet, and that the engineer as soon as he saw the persons on the bridge, sounded the danger signals, and the brakes were set. Held, that the unlawful rate of speed was material, and that the evidence sufficiently showed negligence on the part of the engineer.

Trespassers-License to Use Bridge as Footway.—Where a bridge has been habitually and constantly used for many years by people in the locality as a foot pathway without any objection, notice or warning by the company that it should not be so used, persons walking upon it are licensecs and not trespassers.

Same-Personal Injuries-Res Gestæ—Statement of Engineer.—The statement of the engineer made immediately upon stopping his train after running over certain persons, and while going to the place of the accident, that “They had whistled enough for them" is admissible as part of the res gesta.

New Trial-Newly Discovered Testimony Impeaching Competency of Expert. -A new trial will not be granted upon the ground of newly-discovered testimony impeaching the experience and competency of one of plaintiff's witnesses as a locomotive engineer, and to testify as an expert as to the distance within which a train might be stopped.

APPEAL from Dodge County Court.
John T. Fish and Burton Hanson for appellant.
Harlow Pease for respondent.

ORTON, J.-The facts of this case are briefly as follows: On the afternoon of the 14th day of September, 1886, the wife

of the plaintiff, and mother of the little girl, CathFacts.

arine, deceased, let her go with her little playmate, Edith Jones, to the house of one Mrs. Dacey, to spend the afternoon. Mrs. Dacey lived alone, about 325 feet south of the railway bridge, across the west branch of the Rock river, in the city of Waupun, and about 100 feet east of the track. The bridge is 138 feet long, and 76 feet of it, over the water, was inclosed on both sides, and persons going over it had to walk on the ties. It is 1,056 feet south of the north boundary of the city, and about the same distance north of the depot. The road runs north and south through the city, but about 600 feet north of the bridge it curves towards the east. From a point 1,168 feet north of the bridge, on the west side of the track, at the height of an engine cab, the whole track could have been plainly seen, southwards through the bridge, and to Main street beyond, without any obstruction whatever. Mrs. Dacey was a careful, prudent, cheerful, and respectable woman, of mature years, and very fond of children, and had raised several of her own. The little girl, Catharine, was under five years of age. Mrs. Dacey had been walking about with the little girls, trying to entertain them, and they had been throwing pebbles into the water. They came on the bridge at the south end, and walked across to the other end, and then turned around and walked back, as if returning to Mrs. Dacey's house. When nearly through the inclosed part of the bridge, they first heard and saw the train coming towards them, with great speed. Mrs. Dacey appeared to have been paralyzed with fear, and, when they got about three feet from the end of the inclosed part of the bridge, the train passed over and killed all three of them. The road from the north for a considerable distance, and to within a mile of the city, had a descending grade. The train consisted of ten freight and three passenger cars, with the tender and engine. The testimony tends to prove that the train had been running at the rate of 40 miles an hour, until it had approached the city, and that afterwards, when within the city limits, it was run at the rate of from 25 to 30 miles an hour; and that the engineer saw these persons on the bridge when the train had approached a point 965 feet from them,

and might have easily stopped the train before it had reached the bridge, even if it had been running at 6 miles an hour. He testified that he could stop the train, within 600 or 700 feet, if it had been running at the lawful speed of 6 miles an hour, and that he might have stopped it, as it was then running, within 1,000 feet, and the evidence was that he might have seen these persons at a point over 1,200 feet from them. The train was behind time, which may account for the fast running. The testimony tended to prove, also, that the bridge had, for many years, and up to the time of the accident, been habitually and constantly used, by men, women, and children, going back and forth in that part of the city, as a foot pathway, without any objection, notice, or warning by the company, that it should not be so used until after this accident. . As soon as the engineer saw these persons on the bridge, he sounded the danger signal, and the brakes were set, but the air-brakes were out of order, and were not used. The plaintiff sues as administrator for his deceased child. The jury rendered a verdict for the plaintiff at $500, and the defendant's counsel moved to set it aside, and for a new trial on the minutes of the court, and on affidavits showing that one of the plaintiff's witnesses had testified in the trial to that which was not true. The motion was denied.

We will not consider the points made by the learned counsel of the appellant in their order:

1. That the court should have directed a verdict for the appellant. This raises the question of the legal effect of the testi

mony. The learned counsel of the appellant conStatute regu. tends that there is no law that prohibited the runlating speed ning of the train at a rate of speed exceeding six limits.

miles an hour, after it had entered the city, and

until it reached the bridge, because it passed over no traveled streets. Section 1809, Rev. St., provides that “in all cities and villages, * * no train or locomotive shall go faster, until after having passed all the traveled streets thereof, than at the rate of six miles per hour.” This train had entered the city from the north, and was going south. It had not yet come to a traveled street, and, of course, had not passed all the traveled streets in that city. It was just about to come to a traveled street, and if it was running, until then, 25 miles an hour, it could not stop or lessen the speed to 6 miles an hour, before it passed at least one traveled street at an unlawful rate of speed. The statute is well framed to prevent this. It must not run within the city at greater speed than 6 miles an hour, and the only exception is, after having passed all the traveled streets thereof.". The statute appears very plain.

Was such an unlawful speed material in this case? We think it was clearly so. It is quite evident that if the train

had been running only six miles an hour, after it Negligence had entered the city, this accident would not have

happened. The train could have been easily stopped

befere it reached the bridge. Mrs. Dacey would have had time to get off the track after she saw it. This train, 550 feet long, was running at an extraordinary and tremendous rate of speed. According to the testimony of the engineer himself, he could have stopped it, if it had been running at a lawful rate of speed. It is hard to believe that the engineer

Excessive speed.

Licensee upon

bridge.

did not try his best to stop the train. And yet I have no doubt that there have been instances when the engineer did not do so, and was not guilty of any intentional wrong. The engineer does not like to stop his train' when he sees a person on the track a considerable distance ahead. He expects that the danger signal will be sufficient. Such instances are not rare, and the person does get off in time, and no harm is done. It is not strange that this practice of taking the chances should become habitual. The engineer in this case no doubt did his best to stop his train, but he may not have tried to do so soon enough, at the tremendous rate of speed he was running. The negligence of the company seems to us to have been established beyond all doubt.

It is further contended, by the learned counsel, that Mrs. Dacey and the children were trespassers on the bridge. We think that there was evidence, which the jury might have believed, that the bridge had hitherto been habitually and constantly used as a pathway to and fro, by the people in that part of the city. Mrs. Dacey was using the bridge as a way through which to get home, and not for play, when the train came in sight. It is clear enough that she was a licensee in the use she made of the bridge, and that she was using it properly and lawfully. The negligence of Mrs. Dacey will be considered hereafter. Aside from that, we think the evidence warranted the verdict.

2. Exception was taken to the testimony of the witness Gerrits, of what the engineer said about the accident, about as soon as he stopped his train, south of the bridge and north of the depot, or soon thereafter. The Declarationtestimony was that when asked, “What have you as res gestæ. been doing?” he looked up and said, “ They had whistled enough for them.” It seems that the engineer was going towards the bridge when this occurred. Whatever the jury might understand was meant by this expression, we are satisfied that it occurred near enough to the accident itself to be a part of the res gesta, and admissible. Felt v. Amidon, 43 Wis. 467, and other cases cited in the brief of re. spondent's counsel.

3. The newly discovered testimony to impeach Julius Timple, one of the plaintiff's witnesses, as a ground for a new trial, was upon the question of his experience and compency as a locomotive engineer, and to testify Newly discov. as an expert, and the falsity of his testimony as to ered testihow soon the train might have been stopped. It does mony. not appear that the testimony of that witness conflicted materially with that of the engineer of the train, upon the real question whether the train might have. been stopped before it reached Mrs. Dacey and the children, if it had been run

New trial

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ning at a lawful rate of speed. At all events, a new trial ought not to be granted on account of newly discovered evi. dence of mere impeachment. Bunn 7. Hoyt, 3 Johns (N. 1.), 255; Shumway v. Fowler, 4 Johns (N. Y.), 425; Harrington v. Biglow, 2 Denio (N. Y.), 109; Delaney v. Brunnette, 62 Wis. 615; Schacherl v. St. Paul City R. Co. (Minn.), 43 X. W. Rep. 837; Jones v. Chicago, M. & St. P. R. Co., Id. 1114. There was no abuse of the discretion of the court in refusing to grant a new trial for such cause. Smith v. Champagne, 72 Wis. 480.

The court was requested by the defendant's counsel to instruct the jury, and did so instruct them, and repeated it sev

eral times, that if Mrs. Dacey was guilty of a slight Negligence of want of ordinary care, in going on the bridge with person in cus the children, under the circumstances, and that it tody of child.

contributed to or was the proximate cause of the death of the child Catharine, they should find for the defendant. The learned counsel of the plaintiff excepted to this instruction, and now asks this court to decide, in support of the judgment, that such instruction was erroneous. "He contends that the negligence of the temporary custodian of the child ought not to be imputed to the child herself or to the plaintiff. This court has not yet decided that question. It has frequently held, however, that in such a case, where the child is so young as to be non sui juris, it is a material question whether the parent was or was not negligent in committing the child to such temporary custodian, and whether such custodian was of proper age and discretion to suitably care for it. There has been no occasion to go further, and decide the above question. Hoppe v. Chicago, M. & St. P. R. Co., 61 Wis. 357, 19 Am. & Eng. R. Cas. 74; Dahl 1. Mil. waukee City R. Co., 62 Wis. 652, 19 Am. & Eng. R. Cas. 121; Parish v. Eden, 62 Wis. 272.

The jury considered the question of the negligence of Mrs. Dacey understandingly and fully, as it had been so often impressed upon them by the court, and must have found that she was guilty of no want of ordinary care that contributed to the death of the child. That was a question peculiarly within their province to decide, and their decision of it should be conclusive and a finality if the evidence was not such as to show that she was negligent beyond all question. Randall 2. Northwestern Teleg. Eo., 54 Wis. 140: McNamara v. Clintonville, 62 Wis. 207; Hill v. Fond du Lac, 56 Wis

. 246; Kaples v. Orth, 61 Wis. 531; Ferguson v. Wisconsin Cent. R. Co., 63 Wis. 145, 19 Am. & Eng. R. Cas. 285. We cannot say from the evidence that Mrs. Dacey was

guilty of any want of ordinary care in going upon the bridge with’the

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