#### Langowski, Appellant, vs. Wisconsin Central Railway Company, Respondent.

*April 11*

April *29, 1913.*

*Railroads: Injury to trespasser on bridge: Gross negligence of engineer: Evidence: Instructions to jury: Special verdict: Form: Inspection of defendant’s books, etc.*

1. In an action for personal injuries sustained by plaintiff, who was struck by an engine while crossing a river on a railway trestle, the evidence is *held*to sustain a finding by the jury that after the time he discovered plaintiff on the trestle the engineer was not guilty of gross negligence in respect to stopping the train so as to avoid the accident.

*4192. In view of the issue raised as to gross negligence, there was no error in charging the jury that plaintiff was a trespasser on the trestle and that such an act is made punishable by the laws of this state.

3. Referring to the testimony of a witness for plaintiff that the train could have been stopped before reaching the bridge, the court charged that the jury should carefully weigh the testimony of such witness, should consider first his competency and the experience he had had in stopping trains and making tests, and should give his evidence such weight as they thought it deserved. The court also referred to the testimony of witnesses for defendant as to actual tests, and stated that the defense claimed that such tests were made under conditions similar to those existing at the time of the accident and were more accurate and satisfactory as to the distance within which the train could have been stopped than the testimony of plaintiffs witness based upon his experience and calculations; and directed the jury to consider all the evidence. It appeared that plaintiff’s witness had left the service of defendant about thirty days before the accident on account of a disagreement, and came into the case as a witness Under peculiar circumstances, and had never stopped a train under the conditions in question. *Held,*that there was no error in the charge.

4. Nor was there error in a charge to the effect that if, after the engineer discovered plaintiff on the bridge, he could not by the use of reasonable and due care have stopped the train before plaintiff was struck, then the jury should not find the engineer guilty of gross negligence, but if he could have stopped the train by the use of due care in time to have prevented the accident the jury should give that fact its proper weight in determining whether he recklessly and wantonly ran the plaintiff down.

5. Questions proposed for special verdict which cover no issuable fact, or which relate to matters otherwise properly submitted, are properly refused.

6. A question proposed for special verdict as to “what amount of punitory damages will compensate the plaintiff,” was properly refused.

7. A witness who was subpoenaed to appear before a court commissioner and produce the engineer’s report of the accident and the books of defendant showing what kind of air-brake apparatus was used on the train in question, testified that he knew nothing about the air-brakes, had no access to any books pertaining to them, did not know whether the company had *420records showing what kind of air-brake apparatus was in use on the day of the accident, and knew nothing about the report of the accident or whether defendant had such report. *Held,*that there was no error in denying a motion that the witness be required to produce such books and report for plaintiff’s inspection.

Appeal from a judgment of tbe circuit court for Portage county: James O’Neill, Judge.

*Affirmed.*

Tbis is an action brought to recover damages for personal injuries sustained by plaintiff by being struck by one of defendant’s engines while crossing the railroad bridge of defendant at Stevens Point, Wisconsin. The complaint sets up two causes of action: one for ordinary negligence and one for gross negligence. Issue was joined on both causes of action. The jury returned the following verdict:

“(1) Erom and after the time that Engineer Gleason discovered the plaintiff or some member of his family on the bridge, was said engineer guilty of gross negligence in the operation and control of his engine and train, in respect to stopping the same so as to avoid the accident? *A.*No.

“(2) If you answer the first question ‘No’ you need not ■answer this; but if you answer the first question ‘Yes,’ then answer this: Was such gross negligence in the operation and control of his engine and train by the engineer the proximate cause of plaintiff’s injury? *A.*-.

“(3) In case the plaintiff is entitled to recover, at what sum do you assess his damages? *A.*$500.”

Plaintiff moved for judgment upon the undisputed evidence, and *for*judgment notwithstanding the verdict, to amend the verdict, to set the verdict aside and for a new trial, which motions were denied and due exception taken. The defendant moved for judgment on the verdict and on the undisputed evidence, which motion was granted. Judgment was entered for defendant, from which this appeal was taken.

*A. L. Smongeski,*for the appellant,

contended, *inter alia,*that after the engineer or fireman saw the plaintiff he had *421knowledge that plaintiff was in a dangerous position, and it then became the duty of the members of the train crew to exercise all the means at hand consistent with the safety of the train to avert the accident, and the fact that plaintiff was a trespasser or was violating the law of the state became eliminated from the case at that moment. 1 Thomp. Comm, on Neg. § 25; 2 id. § 1735; *Louisville & N. B. Go. v. Morlay,*58 U. S. App. 526; *Alabama G. 8. B. Go. v. Moorer,*116 Ala. 642, 22 South. 900; *Palmer v. G., St. L. & P. B. Go.*112 Ind. 250, 14 N. E. 70; *Purcell v. C. & N. W. B. Go.*109 Iowa, 628, 80 N. W. 682; *Meddles v. G. & N.*W. *B. Go-.*77 Wis. 228, 46 N. W. 115; *Bideout v. Winnebago T. Go.*123 Wis. 297, 101 N. W. 672; *Anderson v. O., St. P., M. & O: B. Go.*87 Wis. 195, 207, 58 N. W. 79. Trial judges in charging the jury should not go into the testimony in detail, or give special significance to the facts testified to on one side only of the case. *Goman v. Wunderlich,*122 Wis. 138, 99 N. W. 612; *Gonway v. Mitchell,*97 Wis. 290, 72 N. W. 752; *Hoplcins v. Bush Biver,*70 Wis. 10, 34 N. W. 909, 35 N. W. 939; *Kavanaugh v. Wausau,*120 Wis. 611, 98 N. W. 550.

For the respondent there was a brief by *W. A. Hayes*and *Fisher, Hanna & Gaskin,*and oral argument by *Mr. Hayes.*

Kerwin, J.

The principal assignments of error in this case involve the question of the sufficiency of the evidence. In other words, Is the verdict supported by the evidence? The evidence shows that the plaintiff was injured while crossing defendant’s trestle over the Wisconsin river at Stevens Point. Defendant’s trestle is about 600 feet long and about twenty-five feet above the water. The Wisconsin river, ovet which this trestle is constructed, flows in a southerly direction and is about three fourths of a mile west of defendant’s depot. The floor of the trestle consists of ties, guard rails and track rails, and is not planked. The ties are about twelve *422feet long and eight inches wide, with spaces between them varying from four to six inches. There is no highway for a considerable distance from either end of this trestle. About 1,200 feet west of the river is a curve through a deep cut, so that from the trestle one cannot see a train approaching from the west until it *emerges from*the cut. There, was at the time of the injury, at each end of the trestle, a sign upon which was written “Dangerous. All persons are forbidden to walk upon the tracks under penalty.” Twenty trains a day pass over the trestle and it requires about fifteen minutes to walk across it. There are between the two ends of the trestle forty-four places about twenty-eight feet apart where a person can stand aside while a train passes.

On Sunday, November 29, 1908, the plaintiff, his wife, and four children, three girls and a boy, ranging in age from six to thirteen years, entered upon this trestle from the east end. They were on their way home, and could have gone without crossing the trestle by way of regularly traveled streets. Plaintiff had lived in Stevens Point thirty-eight years and was familiar with the situation. The train which struck plaintiff, when running on schedule time, had about fourteen minutes to make the run from Junction City to Stevens Point, a distance of eleven miles. About the time plaintiff and his family started westward over the trestle, defendant’s limited passenger and mail train started eastward from Junction City. The girls preceded plaintiff, and when about half way across the trestle heard the whistle of the approaching train, notified plaintiff, and immediately started to run. They got across the trestle, stepped aside, and escaped injury. The plaintiff, his wife and boy were struck, the wife being killed instantly, the boy’s skull fractured, and the plaintiff injured. The train consisted of an engine and seven cars equipped with Westinghouse automatic quick-action air-brakes. On account of the curve the engineer could not see the trestle until about Y00' feet from it. The fireman *423could see it somewhat sooner, and as the train came out of the cut he saw persons upon the trestle near the west end and immediately told the engineer. The speed of the train going out of the cut and onto the straight track enabled the engineer to see the plaintiff about the time the fireman saw him. Upon seeing plaintiff the engineer instantly put on all braking power, applied the sand, and the train came to a stop upon the trestle after striking plaintiff.

It is perfectly clear from an examination of the whole evidence that it fully supports the finding of the jury that the engineer was not guilty of gross negligence in the operation and control of his engine and train in respect to stopping the same so as to avoid the accident. We shall therefore spend no time in discussing this proposition. The plaintiff carelessly and recklessly, with the intention of crossing, went upon the trestle with his family, where he had no right to be, and the operators of the train had no reason to believe that any person would be upon the trestle or attempt to cross it in the face of imminent danger. Erom the time the engineer and fireman saw plaintiff or any member of his family until they were struck, only a few seconds elapsed, and the evidence shows very clearly that during that time everything that could reasonably be done by the engineer to stop the train was done.

Several errors are assigned in the admission and exclusion of evidence, but they are wholly without merit and we shall take no time in discussing them.

Appellant also complains of the charge to the effect that the court told the jury that the plaintiff was a trespasser on the trestle on the day of the accident and that such an act is made punishable by the laws of this state. There was no error in this charge. It was proper in view of the issue raised respecting the gross negligence of the engineer. *Pinoza v. Northern C. Co.*152 Wis. 473, 140 N. W. 84; *Anderson v. C., St. P., M. & O. R. Co.*87 Wis. 195, 58 N. W. 79.

*424Counsel for appellant also complains of tbe following portion of tbe charge:

> “The plaintiff bas offered tbe testimony of witness Menzel to show that tbe train could have been stopped before reaching tbe bridge. It will be tbe duty of tbe jury carefully to weigh tbe testimony of- this witness. You will consider first bis competency, tbe experience be bas bad in stopping trains and mailing tests, and give bis evidence sueb weight as you tbink it deserves. Tbe defendant bas offered testimony of several witnesses wbo bave made actual tests under wbat is claimed to be similar conditions, as far as practicable, to determine tbe distance witbin wbicb a similar train could be stopped. Tbe witnesses bave testified to tests made on last Thursday, Friday, Saturday, and Sunday. It is tbe claim of tbe defense that these tests were made under practically similar conditions to those existing on tbe day of tbe accident, and it is further claimed that these actual tests are more accurate and satisfactory as to tbe distance witbin wbicb tbe train could bave been stopped than tbe testimony of tbe plaintiff’s witness based upon bis experience and calculations. Tbe witnesses for tbe defense wbo bave testified state that under tbe conditions observed tbe train could not bave been stopped before reaching tbe bridge. Several of them give it as their opinion that under tbe conditions assumed to bave existed on tbe day of tbe accident, the manner in wbicb Engineer G-leason applied tbe brakes and operated tbe train was tbe proper way in wbicb to bave controlled tbe speed and made tbe stop in tbe shortest practicable space.”

> “The court will not attempt to refer particularly to tbe evidence on either side. It will be tbe duty of tbe jury to consider all this evidence for tbe purpose of determining whether tbe train could bave been stopped before reaching the bridge and whether the engineer- was guilty of such reckless and wanton conduct 'as amounted to gross negligence.”

There was no error in this portion of tbe charge. It appears that tbe witness Menzel referred to left tbe service of defendant about thirty days before tbe accident on account of disagreement and came into tbe case as a witness under peculiar circumstances and bad never stopped a train under the circumstances in question.

*425Tbe following portion of tbe charge is also excepted to:

> “If tbe jury find tbat after tbe engineer discovered tbe plaintiff or some members of his family on the bridge tbe engineer could not, by tbe use of reasonable and due care, have stopped tbe train before tbe plaintiff was struck, then it follows tbat tbe jury should not find tbe engineer guilty of gross negligence. A finding to this effect will be decisive in answering tbe question in tbe verdict. If tbe jury find tbat after such discovery of tbe persons on the bridge tbe engineer could have stopped tbe train by tbe use of due care in time to have prevented tbe accident, they will give such finding its proper weight in determining whether tbe engineer recklessly and wantonly ran tbe plaintiff down.”

There was no error in this part of tbe charge.

Counsel for appellant also assigns error on refusal of tbe court to submit to tbe jury certain questions requested by appellant. Some of these requests cover no issuable fact, hence were properly refused. Tbe seventh and eighth relate to tbe gross negligence of tbe engineer and. also to tbe amount of damages, and these questions were submitted in proper form by tbe court. Tbe ninth relates to tbe amount of punitory damages which would compensate plaintiff, and this was properly refused.

Tbe tenth 'assignment of error relates to tbe denial of plaintiff’s petition for inspection of tbe books of tbe defendant for tbe purpose of ascertaining what kind of air-brake apparatus was used on tbe train in question and tbe report of tbe accident by the engineer to tbe defendant. One Mill-ington was subpoenaed to appear and produce tbe books of tbe company and report of tbe accident. He appeared pursuant to tbe subpoena and submitted to full examination, but did not produce tbe books nor tbe report for tbe reason tbat be did not have possession of them. He testified tbat be knew nothing about tbe air-brakes and bad no access to any books pertaining to them, and did not know whether tbe company bad records showing what kind of air-brake apparatus was in use on tbe day of tbe accident; tbat be knew nothing about *426tbe report of tbe accident or whether tbe defendant bad such report. It is therefore clear that no error was committed in denying plaintiff’s petition for inspection.

In tbe instant case there was such a lack of evidence to support tbe charge of gross negligence that it is quite clear that, even if error bad been committed under tbe several beads complained of, it could not in any way have prejudiced appellant. Further discussion of tbe case seems unnecessary. It is plain that tbe plaintiff bad a fair trial and no prejudicial error was committed.

*By the Court.*— Tbe judgment of tbe court below is affirmed.