Belongy v. Kewaunee, G. B. & W. Ry. Co.

• Decision Date: 23 June 1924
• Citation: 199 N.W. 384,184 Wis. 374
• Parties: BELONGY v. KEWAUNEE, G. B. & W. RY. CO.
• Court: Wisconsin Supreme Court

184 Wis. 374

199 N.W. 384

BELONGY

v.KEWAUNEE, G. B. & W. RY. CO.

Supreme Court of Wisconsin.

June 23, 1924.

Appeal from Municipal Court, Brown County; N. J. Monahan, Judge.

Action by Nellie Belongy against the Kewaunee, Green Bay & Western Railway Company. Judgment for defendant. From an order setting aside the jury's special verdict, and granting a new trial, defendant appeals. Reversed, with directions.

Nellie Belongy sued the defendant for damages for personal injuries received when an automobile in which she was riding, driven by Mrs. Carrie Hoberg, was struck by a freight car that was being pushed across Webster avenue, in the city of Green Bay, by one of defendant's locomotives. The jury returned a special verdict, in which they found that the plaintiff was injured as alleged; that the collision was caused by the failure of the defendant company to give timely and suitable notice or warning; that they were shoving cars in advance of the engine; and that the negligence of the railway company was the proximate cause of the collision. The jury found that the bell was rung and that the train was not traveling faster than 12 miles an hour, and they also found that the plaintiff was guilty of more than a slight want of ordinary care, and that such want of ordinary care contributed to produce the collision. After verdict, there were the usual motions, and the court set aside the verdict on the ground of error in the instructions given by the court to the jury, and from the order setting aside the verdict, and granting a new trial, the defendant appeals.

Crownhart, J., dissenting.

Fairchild, North, Parker & Bie, of Green Bay (Samuel D. Hastings, of Green Bay, of counsel), for appellant.

John Gauerke and Martin, Martin, Martin, Clifford & McHale, all of Green Bay, for respondent.

ROSENBERRY, J. (after stating the facts as above).

It is contended by the defendant, first, that the plaintiff was guilty of contributory negligence as a matter of law; second, that the trial court committed an error of law in setting aside the verdict, and that the defendant was entitled to judgment upon the verdict. The plaintiff was a woman 44 years of age, and on the afternoon of September 21, 1921, Mrs. Hoberg called at the home of the plaintiff, and the plaintiff and Mrs. Hoberg went for an automobile ride. They proceeded northerly along Webster avenue, which crosses the East river. At the northerly end of the bridge, and about 48 feet beyond the end of the bridge, there is a switch track which crosses the highway as indicated by Exhibit 9 printed herewith:

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An engine of the defendant railway company was engaged in switching, and was pushing three cars ahead of it west on the industrial track, which serves a plant north of the track and east of Webster avenue. The collision took place at a point 14 feet west of the center of the street. As one drives north over the bridge, the view is obstructed by a steel siding on the bridge 6 feet 6 inches high. Seventy-seven feet from the north end of the bridge it begins to slope downward, and at the north end of the bridge the siding is 2 1/2 feet high. The plaintiff testified that after the automobile left the bridge she looked both ways; that she considered this a dangerous crossing; that she was perfectly willing to leave the responsibility of driving the car with Mrs. Hoberg, and thought that Mrs. Hoberg would look out for plaintiff's safety; that when Mrs. Hoberg turned the wheel, after they saw the box car, it was just about onto them, or probably 10 feet away.

[1][2] In view of the finding of the jury, it must be held that the defendant's contentions that the cars were in view from a point more than 100 feet east of the crossing, that Mrs. Hoberg and the plaintiff did not look or stop, and that the automobile was in fact 4 feet past the lookout signpost when they first observed the freight car, are sustained. In this connection, it is to be noted that Mrs. Hoberg, the driver of the car, sat on the left-hand side of the seat, away from the approaching box cars, and that the plaintiff sat on the right-hand side of the front seat, on the side nearest to the approaching box cars. As to the duty of the plaintiff, who was an invited guest, the court instructed the jury as follows:

“The degree of care which a party is obliged to exercise in order to constitute ordinary care varies with the degree of the danger. Our courts have recognized the duties of travelers approaching and crossing railway tracks at street crossings, and have established a rule of diligence as to what shall constitute ordinary care on the part of one so approaching and crossing a railroad track. It is undisputed in this case that Mrs. Hoberg, the driver of the automobile, and also Mrs. Belongy, the plaintiff, was familiar with this crossing just north of the Webster avenue bridge, as both had crossed it many times. They therefore knew of the presence of the railroad track at the place of the accident. It is a rule of law in this state that the presence of a railroad track is a warning of probable danger. It is a standing proclamation to persons approaching it that a train is liable at any time to run thereon, and the traveler approaching it must assume at all times that a train may be approaching. When Mrs. Hoberg and Mrs. Belongy knew that they were approaching this track, they and each of them had a duty to perform, the duty to look and listen for an approaching train, cars or locomotive, before attempting to cross the track. Failure so to do when there is an opportunity therefor, and to keep out of the way of an approaching train, cars, or locomotive, which could be seen or heard by them by a vigilant performance of this duty to look and listen, would be want of ordinary care on the part of either Mrs. Hoberg or Mrs. Belongy, if either failed to perform it. * * *

The duties of travelers approaching a railway crossing, that I have enumerated in the foregoing instructions, to look and listen, apply to all travelers on the highway. So far as the performance of these duties is concerned, the law makes no difference between the driver of an automobile and a guest sitting in the front seat with her. If Mrs. Hoberg failed to perform these duties, she was guilty of a want of ordinary care. Likewise, if Mrs. Belongy failed to perform these duties, she was guilty of a want of ordinary care. If you find that Mrs. Belongy did perform these duties, then you will consider whether or not her conduct...