#### Ramey, Appellant, vs. Oconto Company, Respondent.

*December 7, 1927*

January *10, 1928.*

*Railroads: Unauthorised use of hand car or velocipede upon tracks: Gross negligence.*

1. The term “hand car,” as used in sec. 343.43, Stats., penalizing the running of such a car upon a railroad track without permission, includes motor cars or velocipedes, p. 543.

2. Decedent, who was killed in a collision with a train while riding upon a railroad gasoline velocipede without permission having been given for its operation on the tracks of a railroad, as required by sec. 343.43, Stats., which was enacted for the safety of the traveling public, was guilty of such gross negligence as to bar recovery for his death, p. 543.

Appeal from a judgment of the circuit court for Oconto county: W. B. Quinlan, Circuit Judge.

*Affirmed.*

Action to recover damages for the death of plaintiff’s husband caused by a collision between a railroad velocipede driven by one Lancour and upon which was located plaintiff’s intestate and a man by the name of Johnson. The three men were telegraph operators in the employ of the Chicago & Northwestern Railway Company but were not on duty the day of the accident. Lancour owned a light railway velocipede commonly called a pede, and on Sunday, February 8, 1925, invited his friends to go out into the woods with him some considerable distance, either for the purpose of showing the woods to Ramey, who had not been in that- region very long, or for the purpose of a general outing and exploring for fishing grounds to be used later on. The day was a very foggy one. It was difficult to see more than half a car length at times. They had proceeded a considerable distance when Lancour, who ran the pede, slowed up some to a rate of eight or ten miles per hour because he thought he had reached the locality of Bonita or Good Spur.- He was. adjusting the carburetor when he looked up and beheld some distance ahead of him a freight *542car. He thought it was on the side track at Bonita and proceeded on. His two companions were sitting looking out into the woods to the left. In a moment a collision occurred and Ramey and Johnson were instantly killed and Lancour seriously injured, but afterwards recovered. Considerable testimony was given as to whether or not Lancour and his friends were licensees or trespassers on the track. There was no evidence showing that they had any direct permission to use the velocipede upon the track. The extent of that testimony was to the effect that Lancour had used it considerably and that employees of the railroad company had seen him do so. The train that collided with the plaintiff’s intestate was owned and operated by the *Oconto Company,*lessee of this part of the track of the Chicago & Northwestern Railway Company. The *Oconto Company*had leased a portion of the track for a logging road for its own purposes. Plaintiff claims that Lancour and his friends were licensees upon the track and were in the exercise of ordinary care. After taking testimony upon this point and after plaintiff rested, the trial judge granted defendant’s motion for a nonsuit on the ground that plaintiff’s intestate was guilty of contributory negligence. From a judgment entered accordingly the plaintiff appealed.

For the appellant there was a brief by *Arthur B. Doe*of Milwaukee and *Lehner & Lehner*of Oconto Falls, and oral argument by *Adolph P. Lehner.*

For the respondent there was a brief by *Bberlein & Larson*of Shawano, and oral argument by *A. S. Larson.*

Vinje, C. J.

While we think that the trial judge reached the right conclusion in rendering a judgment for the defendant because there was no evidence to show that plaintiff’s intestate and his friends were more than trespassers upon the track, still we think the judgment can be affirmed upon another ground.

Sec. 343.43, Stats., provides that any person who, “with*543out permission, shall run or place on any railroad track any hand car shall be punished by imprisonment in the state prison not more than three years nor less than oine year, or in the county jail not more than one year, or by fine not exceeding one thousand dollars.” This statute was enacted prior to 1878 and before motor cars or railroad velocipedes were known as such, but the term “hand car” as used in this statute includes “motor car” or “railroad velocipede” as defined. Webster’s International Diet., “Velocipede.” The latter being run by gasoline are far more dangerous to the public generally than the old-fashioned hand car operated by man power only. In *Pinoza v. Northern C. Co.*152 Wis. 473, 140 N. W. 84, it was held that the violation of a statute intended to insure personal safety was such gross negligence as to bar ordinary contributory negligence as a defense. To the same effect is *Pizzo v. Wiemann,*149 Wis. 235, 134 N. W. 899. There is no question that the statute with reference to the use of hand cars or velocipedes on railroad tracks was enacted for the safety of the traveling public.

*By the Court.*— Judgment affirmed.