Seefeld v. Chi., M. & St. P. Ry. Co.

• Decision Date: 22 November 1887
• Citation: 35 N.W. 278,70 Wis. 216
• Parties: SEEFELD v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

70 Wis. 216

35 N.W. 278

SEEFELD

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

November 22, 1887.

Appeal from circuit court, Marathon county.

TAYLOR, J., dissenting.

This is an action to recover damages for injuries to the person and property of the plaintiff, alleged to have been caused by the negligence of the employes of the defendant company in operating one of its trains on the Wisconsin Valley division of the company in the city of Wausau. The railroad of the defendant company passes through that city from north to south on the east side of, and near, the Wisconsin river. Bridge street in said city runs east and west, crossing the railroad. A spur track, commencing south of such crossing, extends north, also crossing Bridge street, about 32 feet east of the main track. At such crossing the spur track is between three and four feet higher than the main track. At a point almost 227 feet east of the crossing of the main line, Bridge street crosses First street. From a point west of the crossing of the main line, Bridge street is planked, 16 or 18 feet in width, east, to a point within about 45 feet of First street. In the north-east angle of Bridge street and the spur track, there is a planing mill, with a platform in front and to the west of it, extending to the spur track. At the time of the accident there were piles of lumber upon such platform, and box cars standing upon the spur track, extending in front of the platform south to, and probably upon, Bridge street. There was also a car on that track, south of the others, and partly in the street, with an opening between it and the other cars for the passage of teams on the plank way. During the afternoon of July 27, 1885, the plaintiff, who resided west of Wausau, and had come into the city that morning over such crossing, started for his home, and drove his team of horses, hitched to a common lumber wagon, north on First street to Bridge street. He then turned west on the latter street. He had in his wagon eight barrels of lime, a keg of nails, and other articles of merchandise. His daughter was with him. Immediately preceding him, going in the same direction, was a team and wagon driven by one Gerst. This wagon was loaded with large wooden frames about 12 feet in length, laid across the top of the wagon box, and piled as high as an ordinary load of hay. Gerst was riding on the top of the load. Immediately behind the plaintiff was another team which was being driven in the same direction. Bridge street descended very gradually from First street to the spur track, and from thence there was a sharp descent to, and beyond, the main track. A team with a loaded wagon being driven on that street can easily be stopped at any time before the wagon gets across the spur track, but it is difficult to stop after that until the main track is crossed. From a point on Bridge street, a few feet west of the corner of First street, to the spur track, a train on the main line could not be seen by the plaintiff when he was passing there, the view being obscured by the planing mill, the lumber piles on the platform, and the cars standing upon the spur track. The plaintiff drove his team on a walk, and looked and listened for passing trains, but did not stop his team. Gerst drove his team across the main track in safety. He saw a train approaching the crossing from the north when he was between the two tracks, and hastened the speed of his team. When the plaintiff had crossed the spur track he saw the same train, then in the immediate vicinity of the crossing. It was too late to stop his team. He reined them to the south, but not in time to clear the train. Either the locomotive or the tender struck his team, killing one of his horses, and injuring the other, overturning the wagon, destroying the property therein, and inflicting serious injuries upon the person of the plaintiff. The speed of this train, which had been at the rate of almost 35 miles an hour, was slackened to about 15 miles an hour when it passed the crossing. Whether any signal was given from the locomotive by ringing the bell or blowing the whistle as the train approached the crossing, was a disputed question of fact on the trial. After the testimony was all in which established the facts above stated, the circuit judge directed the jury to return a verdict for the defendant, on the ground that the evidence showed conclusively that the plaintiff was guilty of negligence which contributed directly to the injuries of which he complains. A motion for a new trial was denied, and judgment entered pursuant to the verdict. The plaintiff appeals from the judgment.

Bardeen, Mylrea & Marchette and G. W. Cate, for appellant.

John W. Cary and Burton Hanson, for respondent.

LYON, J.

In consideration of the present case it will be assumed that there was sufficient evidence to send the question of the negligence of the defendant company to the jury. The only question to be determined is, does the uncontradicted evidence prove conclusively that the plaintiff was guilty of negligence which contributed directly to the injuries of which he complains? The circuit judge was of the opinion that, under the peculiar circumstances of this case, it was the duty of the plaintiff to have stopped his team while he could do so that he might the better hear the approach of the train. It is undisputed that, for almost 150 feet before he reached the spur track, and until he had passed that track, where it was too late to avoid a collision with the train, the plaintiff could not see a train on the main track approaching from the north. Driving as he was between two other teams, upon a plank-road, the leading wagon and his own being heavily loaded, the conclusion is irresistible that there must have been sufficient noise in his immediate vicinity seriously to interfere with his hearing the train as it approached the crossing. Besides, the wind blew from the south, which would be another obstacle to his hearing the train. He was well acquainted with the crossing, and is chargeable with knowledge of all the circumstances of danger which surrounded him. Moreover, the important fact is undisputed that he knew and remembered that the train was due, and should pass the crossing just about the time he reached it. The train was absolutely hidden from his view, and his vision was of no service to him in detecting its presence. So far as seeing the train is...