Crane v. Weber

• Decision Date: 11 April 1933
• Citation: 211 Wis. 294,247 N.W. 882
• Parties: CRANE v. WEBER ET AL.
• Court: Wisconsin Supreme Court

211 Wis. 294

247 N.W. 882

CRANE

v.WEBER ET AL.

Supreme Court of Wisconsin.

April 11, 1933.

Appeal from a judgment of the Circuit Court for Outagamie County; Edgar V. Werner, Circuit Judge.

Action by Francis Crane, by Stanley Crane, his guardian ad litem, against Raymond Weber, by Frank F. Wheeler, his guardian ad litem and others. From that part of judgment dismissing complaint as to Chicago & Northwestern Railway Company, plaintiff and named defendant and defendant Nicholas Weber appeal, and from that part of judgment holding Raymond Weber, by Frank F. Wheeler, his guardian ad litem, and Nicholas Weber liable to plaintiff, such defendants appeal.--[By Editorial Staff.]

Reversed, with directions to dismiss complaint.

Action commenced May 19, 1931, for personal injuries sustained by the plaintiff at a railroad crossing in a collision between an automobile driven by the defendant Raymond Weber in which the plaintiff was riding, and a train of the defendant company grounded on alleged joint negligence of the driver of the automobile and the railway company. From the portion of a judgment entered March 5, 1932, dismissing the complaint as to the railway company, the plaintiff and the defendants Weber appeal; and the defendants Weber also appeal from the portion of the judgment awarding judgment against them.

The complaint alleges that plaintiff sustained injuries while riding as a guest in an automobile driven by Raymond Weber through the automobile's colliding with a train of the defendant railway company at a railway crossing in the city of Appleton, and that his injuries were caused by the joint negligence of the driver and of the railway company, and asks judgment for his damages against both defendants. The railway company interpleaded the parents of Raymond Weber on the ground that he was a child under 16 years of age, driving under a special permit, and that section 85.08, Stats., makes the “parent” of a child driving upon such a permit responsible for all damages growing out of the negligent operation of an automobile driven by such child.

Trial was had to the jury, who by special verdict found Raymond Weber was guilty of negligence that caused the collision; that the railway company was guilty of negligence in operating its train in excess of twenty miles an hour within the city limits, and that the excessive speed proximately caused the plaintiff's injuries; that the plaintiff was not guilty of contributory negligence; and assessed plaintiff's damages at $5,500. The court changed the answers in the verdict finding that excessive speed of the train was a proximate cause of the plaintiff's injuries, dismissed the case as to the railway company and the interpleaded mother of the defendant Raymond Weber, and awarded judgment against the defendant Raymond Weber and his interpleaded father for the amount assessed by the jury. From this judgment Raymond Weber and his father appeal from the portion awarding damages against them and from the portion dismissing the complaint against the railway company, and the plaintiff appeals from the part of the judgment dismissing the complaint against the railway company.

WICKHEM, J., dissenting.

Sheridan, Evrard & Evrard, of Green Bay, for plaintiff appellant.

Frank F. Wheeler, of Appleton, and Richmond, Jackman, Wilkie & Toebaas and L. E. Hart, all of Madison, for defendants appellants.

John F. Baker, of Milwaukee, for respondent.

FOWLER, Justice.

[1] Many grounds for reversal are assigned by the appealing parties, but, in the view we take of the case, we need only consider the claim of the defendants Weber that the plaintiff was guilty of contributory negligence as a matter of law. The collision occurred before enactment by the Legislature of the comparative negligence statute, so that contributory negligence is an absolute defense to the action.

[2] The undisputed evidence bearing upon the question of contributory negligence is as follows: Raymond stopped for the plaintiff at the latter's home about a half block from the crossing where the collision occurred, and on the plaintiff's entering the car drove on toward the crossing. A wigwag signal was working as the car approached the crossing, and both boys saw it in operation. The train was approaching from the right on the main railway track, which was the middle of three parallel tracks 5 feet apart. A switch track which the automobile crossed was located 145 feet from the main track. When crossing this switch track, the plaintiff looked to his right, but could see nothing because buildings shut off his view. These buildings extended to within 38 feet from the main railway track. At a point in the center of the street 75 feet from the center of the main track the view to the right on the main track extends 70 feet; at 50 feet, 152 feet; at 35 feet, 829 feet; at 25 feet from one-half to three-quarters of a mile. The automobile was traveling midway between the center of the street and the curb, and a person in the automobile could not see quite so far down the tracks to the right as a person in the center of the street, as the street crossed the tracks at an angle at the right of about 140 degrees. After crossing the switch track, the plaintiff did not look to the right...