Lofdahl v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

Upon the authority of the case of Delaney v. M. & St. P. R. Co. 33 Wis. 67, we must hold, upon the plaintiff’s own evidence in this case, that he was guilty of contributory negligence. He was almost sixteen years of age, .and familiar with railway trains and the conduct of railway business. He deliberately placed himself upon a *424railway track, twenty feet in front of an engine wbicb he knew was liable to move at any time, with his back to the engine. It would be difficult to imagine a plainer case of negligence. Whether he was upon the licensed way, or-was a mere trespasser upon the right of way, the result is the same. Such conduct cannot be made ordinary care, even by the verdict of a jury.

It was argued that the judgment should be affirmed, notwithstanding the plaintiff’s negligence, because the negligence of defendant’s servants was “gross and wanton.” No such issue was submitted to the jury, nor was any such fact found by the jury. Neither can we say that the un-contradicted evidence established gross or wanton negligence. This contention, therefore, cannot prevail.

By the Oourt.— Judgment reversed, and action remanded for a new trial.