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playing in the sand between the rails of the track. The couplingpin between the three box cars and the 20 cars was pulled before the train came to a full stop, so that as soon as the engine and three box cars came to a full stop they became separated from the 20 cars, which remained upon the side track. The bell continued to ring during all the time. The engine and three box cars were then started southward to get south of the switch onto the main track, but had moved only about 15 or 20 feet, or a little more, when the engineer heard an alarm from a lady and the fireman at the same time; and thereupon he stopped the engine as soon as he could do so, which he thought was within a space of about eight feet. Upon stopping the engine Olaf's body was found lying dead on the track, forward of the forward drive-wheel on the left-hand side of the engine.

The above facts are not disputed. At the close of the trial the plaintiff was nonsuited, and from the judgment entered theron this appeal is brought.

Tracy and Bailey, for appellant, Henry Johnson. W. F. Vilas and F. Lamb, for respondent, Chicago and Northwestern Railway Company.

CASSODAY, J.-This case was here upon a former appeal from a judgment of nonsuit. 49 Wis. 529. The question of the plaintiff's contributory negligence was involved upon that appeal, as it is upon this. "It was for the jury," as there said, "to say whether the parent or this child-regard being had to his age and intelligence-used that degree of care required under the circumstances." The question of contributory negligence upon the part of a child of such tender years as Olaf was somewhat considered in Townly v. Railway, 53 Wis. 634-637, 4 Am. and Eng. R. R. Cas. 562. It is there held, in effect, that such child cannot be adjudged guilty of contributory negligence, as a matter of law, unless the child is so young as to impute negligence to the parent for allowing it to be upon the track at all. Beyond question there is abundant authority for holding that it is contributory negligence for a parent to allow a child of very tender years to be about railroad trains or upon railroad tracks. Fitzgerald v. Ry. 13 N. W. Rep. (Minn.) 168; Cauley v. Ry. 2 Amer. and Eng. R. R. Cases, (Pa.) 4, and note; Smith v. Ry. Id. 12, and note; Mason v. Ry. 27 Kan. 84, 6 Am. and Eng. R. R. Cas. 1; Michigan Central R. Co. v. Hassenmeyer, 6 Amer. and Eng. R. R. Cases, (Mich.) 59, and note; 25 Alb. Law J. 304. Some of these cases discuss with ability the question of liability where the child is a trespasser upon the railroad track or

cars.

Without going into a discussion of the question, we are inclined to hold that the mere fact that Olaf was seen upon the track at or near the street crossing, even when coupled with the fact that his father saw him going towards the track, was not enough to es

tablish contributory negligence as a matter of law, so as to authorize the court to take the case from the jury.

Does the undisputed evidence show that the defendant was free from all negligence? "It seems to be pretty well settled that a railroad company must provide for a careful lookout in the direction that the train is moving, in places where people, and especially where children, are liable to be upon the track. If they do not, and a person has been injured, then the company may, in the absence of contributory negligence, be held liable." Townley v. Railroad Co. 53 Wis. 684, 4 Am. and Eng. R. R. Cas. 562. It is claimed, however, upon the part of the railroad company, that it did keep such lookout in the direction in which the train was moving, but that none of the defendant's servants in charge of the train knew that Olaf and his comrade, or either of them, came up from under the bridge and got onto the foot-board behind the tank at the back end of the engine, nor that they remained thereon and rode up to or across the highway. They moreover claim, as the engineer and fireman testified, that after stopping, and immediately before starting to back down towards the crossing, the engineer looked out of the window upon one side of the engine, and down southerly upon the track, and the fireman looked out of the window upon the other side of the engine, and down southerly upon the track, and that neither saw these boys or any one on the crossing, or anywhere upon the track, and that had these boys, or either of them, been upon the track at the crossing, or anywhere along the track at the point in question, except between the rails within 12 to 15 feet of the rear end of the engine behind the tank, they could and would have seen them. In support of this, they cite the testimony of the plaintiff's principal witness, Mrs. Vanderberg, who says on cross-examination: "I think the engine stopped six or seven feet from where the boys jumped off. . . Question. After the boys got off they seemed to get into the middle of the track? Answer. That is where they jumped into when they jumped off. Question. The engine went on from them only six or seven feet? Answer. I think it was about that. . . . Question. He was killed where he was playing? Answer. He was pushed along some by the engine."

If it was shown by the undisputed evidence, as claimed, that these boys got upon the foot-board of the rear end of the engine, behind the tank, and remained there, and rode up to within six or seven feet of the place where the rear end of the engine stopped, without the knowledge of any person employed upon the train, and then jumped off onto the track between the rails and remained there, so near to the rear end of the engine that neither the engi neer nor fireman, each being in his place on the engine, and just before starting back each looking out of the respective windows of the engine, could possibly see the boys, or either of them, or any

one upon the track, and knew nothing of their presence until after hearing the alarm, then it would seem to be established that there was no want of ordinary care upon the part of the defendant, and that the nonsuit was properly granted. But can we say that such claim is sustained by the undisputed evidence? The undisputed evidence shows that the switch was just 80 feet north of the north side of the bridge; that the engine pushed the train up onto the side track until one and a half or two of three box cars next to the engine were on the side track; that the length of a car was from 24 to 30 feet; that the length of the engine was 20 to 25 feet; and the engineer testified that "Next we pushed them [the 20 cars] ahead on the side track. When we pushed them ahead on the side track the engine didn't go on the side track; it went, may be, within thirty feet of the switch-the length of a rail. I think we had only three cars between the engine and the switch; may be there was one or one and a half of those cars somewhere along there." These figures would bring the foot-board upon which the boys rode somewhere from 44 to 70 feet south of the switch; or, in other words, from 10 to 34 feet from the north edge of the bridge, depending upon whether we take the smallest or largest number.

Mrs. Vanderberg, being questioned as to where the boy was when he was struck by the engine, among other things testified that: "Well, I couldn't tell exactly. I know he was near-not quite on the crossing; very near the crossing, anyway; little nearer down the switch. He was away from the edge of the bridge, towards the north; north from the edge of the bridge. I don't think he was further down the track than the side of the bridge. Question. Was he further north than the side of the street? Answer. No; little north; just on the side of the street. . . . He was on the north side of the cattle-guards. . . . When the engine started back, these little boys were in the street and between the track; in the track, I guess it was, right on the edge of the street. . . Question. He was killed where he was playing? Answer. He was pushed along some by the engine. ... He was about there, where the sidewalk is." The engineer testified: "At the time when I picked him [the body] up he was about on the crossing. I picked him out myself. I didn't take any particular notice to see how much he had been pushed along by the engine.... When I took the boy out he was just about in the middle of the crossing. I call the crossing where the public road crosses the railroad track. Perhaps it was about the middle of the bridge." The little boy, Henry Litters, testified: "We had been going south away from home, riding on the engine. When we got to the crossing I got off right by the bridge; about the middle of the bridge. We sat there a minute; squatted down there. We were playing in the dirt and heard the engine coming back."

As was intimated in Jewell v. Ry. Co. 54 Wis. 615, 6 Am. and

Eng. R. R. Cas. 379, but little reliance can be placed upon the mere opinions of witnesses as to duration not measured by conduct, or distance not measured by objects or measurements. This court has frequently held in jury trials that "where the plaintiff's evidence, supposing it to remain undisputed, and giving to it the most favorable construction that it will legitimately bear, including all reasonable inferences from it, would sustain a verdict in his favor, a peremptory nonsuit should not be granted. Spensley v. Ins. Co. 54 Wis. 433, [S. C. 11 N. W. Rep. 894,] and cases there cited. Applying that rule to the case before us, and giving to the testimony as to the location of the boys and engine when the latter started back the most favorable construction that it will legitimately bear, including all reasonable inferences from it, and supposing, for the purposes of this appeal, that such testimony was not in conflict with other evidence, and it will be seen that the jury might have inferred that the rear end of the engine was 34 feet north of the north edge of the bridge when it started back, and that the boys were at the time on the bridge, which would bring them from 34 to 50 feet from the rear end of the engine at the time it so started back. Assuming this to be true, which we must for the purpose of this appeal, however great the preponderance of the evidence may be the other way, then the boys were where the fireman and engineer both could have seen them by looking, had they done so. If they did not look before starting back, then clearly the defendant was guilty of negligence. Johnson v. Ry. Co. 49 Wis. 529; [1 Am. and Eng. R. R. Cas. 886,] Townly v. Ry. Co. 53 Wis. 626; [S. C. 11 N. W. Rep. 55.] If they did look, and the boys were playing between the rails in the street more than 30 feet from the rear end of the engine, where we must assume they were, for the purpose of this appeal, notwithstanding the evidence to the contrary, then it would still be for the jury to say whether the defendant was guilty of negligence. Townly v. Ry. Co. supra. Accordingly, we must hold that there was evidence to go to the jury upon the subject of the defendant's negligence.

For the reasons given the judgment of the circuit court is re

versed and the cause is remanded for a new trial.

See note, 4 Am. and Eng. Cas. 559.

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THEODORE TOBIN

v.

HOUSTON AND TEXAS CENTRAL RY. Co.

(56 Texas Reports, 614. April 11, 1882.)

The limitation of one year, placed by statute upon actions for injuries to the person of another, as assaults, battery, wounding or imprisonment, applies to actions for injuries from accidents on railroads also, the classes above named being examples merely, and not intended to restrict the operation of the statute.

ERROR from Grayson.

Woods, Wilkins & Cunningham, for appellant.

STAYTON, Associate J.-This suit was brought by Theodore Tobin December the 4th, 1879, to recover damages for an injury to his person alleged to have been received by him on the 7th day of December, 1877, through the defective construction of the company's road, and the careless management of the cars of the Houston and Texas Central Railway Company.

The statute of limitations of one year was interposed as a defense by demurrer, and upon hearing the same was sustained and the cause dismissed.

It is claimed that at the time the injury was received there was no statute of limitation in force in this state applicable to the cause of action set out in the petition, and that the court erred in sustaining the demurrer.

The statute in force prior to the adoption of the Revised Statutes provided that "all actions for injuries done to the person of another, as of assault, battery, wounding or imprisonment,

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shall

be commenced and sued within one year next after the cause of such action or suit and not after." We see no reason for holding the statute above referred to was not applicable to every form of physical injury to the person, and the enumeration of particular classes of injuries named in the statute was not intended to limit the operation thereof, but only to give examples of classes of injuries which would be embraced in the language, "injuries done to the person of another." But if this were not so it would not help the cause of plaintiff in error, for he complained of a "wounding" of his person, which is one of the examples given in the

statute.

There being no error in the judgment of the court below, the same is affirmed.

Affirmed.

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