4 N.W. 769 (Wis. 1880), Eilert v. Green Bay & M.R. Co.

Citation:4 N.W. 769, 48 Wis. 606
Opinion Judge:WILLIAM P. LYON, J. LYON, J.
Case Date:March 09, 1880
Court:Supreme Court of Wisconsin

Page 769

4 N.W. 769 (Wis. 1880)

48 Wis. 606




Supreme Court of Wisconsin

March 9, 1880

Page 770

         February 24, 1880, Argued

          APPEAL from the Circuit Court for Jackson County.

         The plaintiff was driving his team and wagon in a public highway crossing the railway track of the defendant company in Clark county, and, as he was crossing the track, collided with a passing train. He received severe personal injuries, his horses were killed, and his wagon was broken by the collision. This action was to recover damages therefor. The complaint states the particular circumstances of the accident, and avers due care to avoid it on the part of the plaintiff, and the negligence of the defendant. The answer is a general denial, and a charge that the injuries resulted from the negligence of plaintiff. No question arose on the pleadings.

         No instructions were proposed on behalf of the defendant, and no exceptions were taken to the charge of the court. The following extract from the bill of exceptions gives the verdict, and the circumstances under which the special questions were submitted to the jury:

         "The court, at the request of defendant's counsel, made at the close of the testimony, directed the jury to find a special verdict; and the following questions were submitted to the jury, and answers made as follows, all of which questions were framed by defendant's counsel, and submitted to the jury at their request: '1. Was the bell rung and the whistle blown on that engine at the usual place before reaching the crossing? Answer. No. 2. Was the property and person of the plaintiff injured, on the day alleged, by the train colliding with the plaintiff's team crossing the track? Answer. Yes. 3. Had the plaintiff reason to expect the train along at the time he was approaching the track, and was he looking for it? Answer. Yes. 4. Did the plaintiff, on approaching the crossing, trot his team to within one rod, or a rod and a half, of the railroad track? Answer. Yes. 5. Did plaintiff, at any time after leaving the creek where he watered his horses, come to a full stop and listen for the train? Answer. No. 6. Was plaintiff familiar with that crossing, and the general lay of the ground about there? Answer. Yes. 7. If plaintiff had come to a full stop at any point within a reasonable distance of the crossing, and listened, could he have heard the rumbling of the train? Answer. No. 8. Was plaintiff prudent or careful in driving his team so near the track as he did,...

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