Bellrichard v. Chi. & N. W. Ry. Co.

• Decision Date: 20 November 1945
• Citation: 20 N.W.2d 710,247 Wis. 569
• Court: Wisconsin Supreme Court
• Parties: BELLRICHARD et al. v. CHICAGO & N. W. RY. CO., Inc.

247 Wis. 569

20 N.W.2d 710

BELLRICHARD et al.

v.CHICAGO & N. W. RY. CO., Inc.

Supreme Court of Wisconsin.

Nov. 20, 1945.

Appeal from a judgment of the circuit court for Rock County; Jesse Earle, Judge.

Affirmed.Action by Lisetta Bellrichard and Andrew Bellrichard by Rock County Savings & Trust Company, his guardian, commenced on September 6, 1944 to recover damages for personal injuries to plaintiffs, and to recover damages sustained by Lisetta Bellrichard because of the death of her infant son, Wayne. The injuries arose out of a collision between an automobile driven by plaintiff Lisetta Bellrichard, and a train operated by defendant railroad company. The action was tried to the court and a jury and a special verdict rendered. The jury found defendant negligent in respect of speed, exonerated defendant from negligence in respect of lookout, and the sounding of the engine bell.

Plaintiff Lisetta Bellrichard was found guilty of negligence in failing to keep a proper lookout and also as to management and control of her car. The former was held to be a cause of the collision, but the causal question with respect to management and control was not answered by the jury. The negligence of plaintiff, Lisetta Bellrichard, was held to constitute more than a slight want of ordinary care. 6% of the negligence involved was attributed to defendant and 40% to Lisetta Bellrichard. The jury found no damages by reason of personal injuries to Lisetta Bellrichard, awarded her $2500 pecuniary damages for the death of her son, Wayne, and assessed $4,000 as the damages of Andrew Bellrichard for personal injuries, including pain and suffering. The other items of damages found need not be detailed and had to do with funeral expenses, damages to automobile, medical expenses, etc.

On motions after verdict the trial court set aside the jury's finding that defendant's negligent speed was a cause of the collision and ordered judgment dismissing plaintiffs' complaint.

The trial court also found that assuming this to be error, it was his view that there should be a new trial for various reasons unnecessary to detail here, in view of our conclusions in respect of the question of causation.

On March 14, 1945, in accordance with its order, judgment was entered dismissing plaintiffs' complaint. Plaintiffs appeal. The material facts will be stated in the opinion.

McGowan & Geffs, of Janesville, for appellants.

J. F. Baker and John E. Krueger, both of Milwaukee, for respondent.

WICKHEM, Justice.

The accident out of which this case arises happened in Janesville on October 26, 1943 at 11 a. m. at the intersection of Pearl Street and the tracks of defendant railroad company. Lisetta Bellrichard, hereafter called ‘plaintiff’ for purposes of convenience, accompanied by her sons, Wayne and Andrew, aged five and four respectively, was driving a sedan north on Pearl Street. It was a bright, clear day and the left, front window of her automobile was open. Her eyesight and her hearing were good. Wayne was sitting in the front seat with his mother, and Andrew was riding on the back seat. The crossing was not protected by gates or electric wigwag. North Street comes into Pearl Street at a point just south of the railroad crossing, but does not intersect. The tracks cross Pearl Street diagonally at an angle of about 45° running from southwest to northeast as indicated by the panoramic view published herewith.

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The train was coming from the southwest ming from the southwest or plaintiff's left, and proceeding in a northeasterly direction. She testified that as she approached the crossing from the south, she was driving at about ten miles per hour. When she was 40 feet from the tracks she looked to the left and saw and heard nothing. She looked to the right and there were no moving trains in that direction. She looked into the rear mirror to see whether there were any cars coming and none were approaching from behind. She took a view of the road ahead and saw that there were no cars ahead of her. She looked at the speedometer at that time and it showed five miles per hour. Her next view to the left was taken as the front end of her automobile came on to the tracks and she then saw the train about 160 feet to the left. She stepped on the gas, the car gave a jump, but failed to clear the track ahead of the train. The train hit the spare tire on the back of the automobile. The force of the blow turned the automobile and pitched it into a light pole on the northeast side of the tracks.

Plaintiff claims that the brakes of her car were in good condition; that she had been over the crossing before and realized that she was approaching a railroad crossing. Based upon a glance at the head end of the train as she came upon the tracks, she estimated the train's speed at 60 to 70 miles per hour. All of the other testimony indicates that the train was going from 30 to 35 miles per hour.

The testimony of the engineer was that he saw plaintiff when she was some 80 feet from the tracks and when the train was about 200 feet from the crossing; that she slowed up as though to stop and then put on speed and attempted to cross ahead of the train. The testimony of the engineer is confirmed by that of plaintiff to the extent that she claims to have slowed down at about that time and that she ultimately put on speed to clear the crossing. There is a divergence as to when plaintiff accelerated the speed of her car.

The views available to persons on the highway at various points are not in serious dispute. At a point 90 feet south of the crossing, the engine of a train 350 feet from the crossing is partly visible. At 60 feet, the train is visible for 600 feet down the track. At 50 feet, the visibility extends to 800 feet. At 30 feet, the view is 1070 feet. At 25 feet, the view is 2600 feet. We consider that these figures are verities and indicate beyond question that had plaintiff looked at 40 feet as she claims she did, she could not have failed to see the train approaching. The jury, of course, established this by finding plaintiff guilty of negligent lookout and has accepted the engineer's story by finding him free from negligence as to lookout. Hence, the fact that the train was in view and would have been discovered by adequate lookout is established by the jury in this case.

The jury also exonerated defendant as to negligence in failing to ring the bell, and it must be taken as established in spite of plaintiff's claim that she did not hear it, that the bell was rung.

The question whether the engineer sounded the whistle was not submitted to the jury and the propriety of not submitting this will be considered later in this opinion. For the moment, however, it will be assumed that the court properly refused to submit this question. No question as to defendant's negligence in management and control was submitted to the jury and no error is predicated upon the failure so to submit. It must be assumed, therefore, either that there was no issue in this respect, or if there was, that the trial court disposed of it in accordance with sec. 270.28, Stats. We are presented initially with the question whether the negligent speed of the train was a proximate cause of the collision in view of the fact that it is the only negligence on the part of defendant found by the jury.

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In dealing with this question, we consider it necessary at the outset to deal with the various contentions as to what the speed of the railroad train was. Aside from plaintiff's testimony, based upon a glance an instant before the collision, the speed of the train was put by disinterested as well as interested persons, at from 30 to 35 miles per hour. This is a clear violation of sec. 192.29, Stats., which prescribes a speed of 15 miles per hour, but not an extremely high rate of speed; indeed, it is no higher than plaintiff might reasonably expect to encounter in the case of an automobile competing for an intersection upon an ordinary highway. Plaintiff's testimony is claimed by her to raise an issue as to the speed and to require the assumption by this court that the speed was in accordance with her testimony, namely, 60 to 70 miles an hour. There is no jury finding to this effect and we think that there was no issue on this point. Plaintiff's testimony was completely without value for the reasons pointed out in Culver v. Webb, 244 Wis. 478, 12 N.W.2d 731. She does not claim to have seen the train until a few seconds before she was hit and then only to have had a brief view of its head end. She had no testimonial qualifications as to speed and it is impossible to create a jury issue out of such material. Plaintiff sought by evidence as to the space within which the train was stopped to prove a higher rate of speed but without going into details, we conclude after a careful examination of the record that this evidence is inconclusive. There is no competent evidence in the record that the train was proceeding at a faster rate than 35 miles an hour. Plaintiff claims that this speed, however, which is more than twice the speed permitted at such crossings, was a proximate cause of the collision because had the train been going at the legal rate, plaintiff would easily have cleared the tracks ahead of it. She relies upon the case of Ellis v. Chicago & N. W. R. Co., 167 Wis. 392, 167 N.W. 1048, 1051, where this court said: ‘A careful review of all the evidence shows that the excessive rate of speed was sufficient to cause the collision. It quite clearly appears that had the train been running 12 miles per hour only the street car would have passed the zone of danger several seconds before the engine reached the point of collision and no collision would have occurred.’

The statement in the Ellis case taken out of its context and applied literally as a universal rule is obviously subject to the criticism that it is an application of the ‘but for’ rule. As pointed out in Umlauft v. Chicago M., St....