McLaughlin v. Chicago, M., St. P. & P. Ry. Co.

• Decision Date: 10 June 1966
• Citation: 143 N.W.2d 32,31 Wis.2d 378
• Parties: Neal J. McLAUGHLIN, Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RY. CO., a corp., et al., Appellants.
• Court: Wisconsin Supreme Court

Page 32

143 N.W.2d 32

31 Wis.2d 378

Neal J. McLAUGHLIN, Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RY. CO., a corp., et al., Appellants.

Supreme Court of Wisconsin.

June 10, 1966.

Rehearing Denied Aug. 19, 1966.

Bender, Trump, Davidson & Godfrey, Milwaukee, for Ry. Co. Rodger S. Trump, Milwaukee, of counsel.

Cornelisen, Denissen, Kranzush & Kuehn, Green Bay, for Ins. Co.

Everson, Whitney, O'Melia, Everson & Brehm, Green Bay, for respondent.

FAIRCHILD, Justice.

1. Scope of review. No party has raised any question concerning our jurisdiction to review the various portions of the order which have been challenged. Sec. 274.33(3), Stats., permits an appeal from an order granting a new trial, and the order appealed from grants a new trial as to one element of damages. We have held that in the converse situation where a trial court sets aside an excessive verdict, orders a new trial on the issue of damages, but awards plaintiff the option of taking judgment for a reduced amount, fixed by the court, plaintiff may appeal from this order. ¹ On such appeals, we have reviewed the question whether the amount fixed by the court as reasonable, and for which the plaintiff was permitted to take judgment, was too low. ² Applying the same principle to this case, defendants could properly appeal from the order and could challenge the court's figure as too high.

Except for the portion of the order directing a new trial on one element of damages, the other portions denied certain motions and granted others, and constituted, in effect, an order for judgment. An order for judgment is not an appealable order. ³ In the instant case, one defendant appealed from the entire order, one defendant appealed from two portions, and plaintiff asks us to review one portion. Each party is asking us to review some portion of the order which would not be appealable if that portion stood alone. No party has objected to our consideration of any challenge.

This court has held that where an order grants a new trial, but also makes other determinations, an appeal cannot properly be taken from the latter portions alone, but those decisions imply that if there had been a proper appeal from the entire order, all portions thereof could be reviewed. ⁴ There are instances where the question of jurisdiction was not raised, and this court did, on appeal from an order granting a new trial review portions of the order other than the portion granting a new trial. ⁵ It seems reasonable and desirable in a case like the present one to be able to review on this appeal the various parts of the order other than the portion granting a partial new trial, rather than to decline consideration on this appeal, and require the parties to await entry of judgment and appeal therefrom if they desire review of these propositions. Accordingly we hold that where an order grants a new trial and makes other rulings on issues which will ultimately be reflected in the judgment, and a proper appeal is taken from such order as an order granting a new trial, the appeal, and right of the respondent to have review of portions appealed from, may extend to such other rulings as well.

2. Negligence of the railroad. Defendant railroad contends that as a matter of law it was free from negligence, and further, that if there was any factual basis for a finding of negligence, it presented a jury question, so that it would be error for the court to find it negligent as a matter of law.

The crossing where the collision occurred is near Crivitz. Highway 141, a principal highway in that area, runs north and south and the track intersects it at right angles. The Beemster automobile struck one of a string of freight cars which were standing still obstructing the crossing. It was dark; there were occasional snow flurries; the automobile approached from the south at about 45 miles per hour. The car obstructing the highway was a flat car, with a crane mounted on it. Plaintiff saw it first, when it was a little more than one hundred feet ahead. There was no automatic signal, flagman or fusee at the crossing.

The standing cars were part of a freight train which had consisted of about 35 cars, hauled by three Diesel units. It had come from Marinette, heading west as it approached the crossing. Just west of the crossing, the track branched into a Y, one track curving south toward Green Bay, the ultimate destination of the train, and one track curving north into Crivitz, where nine cars were to be set out. After the engines first crossed the highway, there were several maneuvers during which the train moved back and forth, obstructing the crossing. Ultimately the engines and nine cars moved along the Y to the north, and the nine cars were set out on a side track. The crew then left the engines and walked to a restaurant for supper. Upon reaching the restaurant they were told that an accident had occurred; they boarded the engines and returned to the crossing.

It is sufficiently clear that the collision occurred after the engines and nine cars proceeded toward the north, leaving the crossing obstructed by one of the approximately 26 rear cars. The trial took place nine years after the collision, and only one member of the train crew testified. One part of his testimony would indicate that when the engines and the nine cars to be set out at Crivitz moved away from the rear 26 cars, such rear cars were left entirely east of the crossing, and if such testimony were accepted, it would follow that the collision must have taken place during an earlier maneuver. This testimony, however is incredible. It would not only mean that the collision occurred before the engine and nine cars left the scene, while the five-man train crew was in the vicinity of the crossing, though unaware of the collision, but, more importantly, such testimony flies in the face of the uncontroverted fact that the cars were obstructing the crossing after the accident when the county traffic officer and other people arrived.

The learned circuit judge deemed that it was negligence for the crew to leave the crossing blocked, without warning signals, in order to go and have their supper. Under the evidence the collision may have happened before the crew actually left the engines to walk to the restaurant. But regardless of when, during this interval, it happened, the critical question is whether the leaving of the cars on the crossing, at night, under existing conditions of visibility, without a warning signal, involved an unreasonable risk of harm to people travelling on the highway.

Defendant railroad argues that it has to run trains across grade crossings in order to operate; therefore it had a right to obstruct the crossing; therefore it was not negligent by reason of the presence of the cars; the cars were a sufficient warning of their own presence; therefore it had no duty to give additional warning.

Defendant railroad cites decisions generally supporting the principles for which it contends, and, indeed, placing a high value upon the utility of railroad operation in comparing it to the risks caused to motorists, but we do not find these decisions applicable to the circumstances of this case.

In 1929, this court held in Hendley v. Chicago & N. W. R. Co. ⁶ that a complaint stated no cause of action against a railroad where it alleged that a freight train had stood on a crossing for 15 minutes on a dark night, without any warning signal being given, and an automobile collided with it. The complaint apparently alleged no facts tending to show that no need of railroad operation was reasonably served by leaving the train in that position, and the theory of the plaintiff was that the blocking of the crossing for more than ten minutes violated a statute. This court held that there was no causal connection between the alleged violation and the injury. 'The lapse of time therefore went no further than to create the condition in which the accident occurred as distinguished from the cause thereof.' In the instant case, however, the evidence shows the circumstances under which the cars were left on the crossing, and we think liability can be predicated upon the proposition that it was a negligent act to leave them there.

In Schmidt v. Chicago & N. R. W. Co., ⁷ a 1926 case, an automobile collided at night with a train which was in motion across a highway. Although there were electric signals (voluntarily installed by the railroad) they were not working. This court held the signals were designed to warn of the approach of the train, and that the railroad company need not anticipate that without signals an automobile driver would collide with a train actually passing over the crossing. The case does support the proposition that there is no common-law duty to warn highway travelers, at least in the absence of special circumstances, of the presence of a train actually moving across the highway.

Defendant railroad also cites the more recent case of Devine v. McGowan ⁸ but a totally different situation was presented. A motorist collided with a lighted engine which moved across the highway after stopping. The train crew was found negligent as to lookout and the motorist as to management and control. At best for defendant, the decision indicates that in the absence of statute, ordinance, or public service commission order, the railroad and no duty to provide a flagman or other warning.

That unlighted freight cars standing across a well-travelled highway at night present a risk of some magnitude to motorists is self evident. In determining whether employees of the railroad were negligent in leaving them there, the utility of such act in the operation of the railroad must be balanced against such risk. Where ordinary and reasonably necessary operations of the railroad are involved we have traditionally made the policy judgment that the motorist must take care of himself, but if the creation of the danger serves no useful...