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

• Decision Date: 02 May 1916
• Citation: 157 N.W. 753,163 Wis. 234
• Court: Wisconsin Supreme Court
• Parties: DERR v. CHICAGO, M. & ST. P. RY. CO.

163 Wis. 234

157 N.W. 753

DERR

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

Supreme Court of Wisconsin.

May 2, 1916.

Appeal from Circuit Court, La Crosse County; E. C. Higbee, Judge.

Action by Eugene H. Derr against the Chicago, Milwaukee & St. Paul Railroad Company. Judgment for defendant, dismissing the complaint, and plaintiff appeals. Reversed, and cause remanded to the circuit court, with direction to restore the jury's answer to a question of the special verdict, and to award judgment for plaintiff upon the verdict as rendered.

The action is brought to recover damages for injury to the person and property of the plaintiff, resulting from a collision between one of defendant's trains and plaintiff's automobile. Caledonia Street runs north and south through the city of La Crosse, and is crossed by seven parallel railroad tracks of defendant. On January 30, 1915, at about 9:30 o'clock in the evening, the plaintiff was driving his car north along Caledonia street toward this crossing. He testifies that he looked out for trains as he approached; that the view of the track to the east of the crossing is obstructed by a bank, some buildings, a fence, some shrubbery, and trees; that the defendant maintained a flagman and crossing gates at this grade crossing, and that he had knowledge of this fact and relied thereon. As plaintiff approached this crossing a train crew was pushing a loaded freight train ahead of an engine toward this same crossing from an easterly direction. The engine pushing the train was two blocks or more east of the crossing in question when the first car arrived on it. The jury found that no warning or signal of the approach of the train was given. The plaintiff testified that he looked for the flagman, but he was not in sight, and that after sounding his electric horn and receiving no warning he started to cross the tracks, and was struck by the first car of this train which approached from the east.

The court submitted a special verdict, and the jury in effect found: (1) That the string of cars which struck plaintiff did not approach at a speed exceeding 12 miles an hour, and that the crew in charge of the train was not wanting in ordinary care in stopping the train after discovering the peril of the plaintiff; (2) that defendant had kept and maintained a flagman at this crossing for a considerable time prior to the accident, and that the plaintiff was acquainted with this fact; (3) that the flagman was absent from the crossing at the time of the accident, and hence failed to signal plaintiff not to cross; (4) that such failure of the flagman to warn plaintiff and the absence of the flagman constituted a want of ordinary care on the part of defendant; (5) that the negligence of defendant in not having the flagman at the crossing and in failing to warn plaintiff of the approaching cars proximately caused the injury to plaintiff and his automobile; (6) that plaintiff was not guilty of negligence, nor of gross negligence, contributing to his injury; and (7) that plaintiff suffered damage in the sum of $900.

At the time of the accident the plaintiff was still driving his automobile under his 1914 registration number, and had not as yet applied for or obtained a license or registration number for 1915. The trial court decided that upon the conceded fact that plaintiff had made no application for a license as provided by section 1636--47, Stats., he was guilty of contributory negligence as a matter of law in driving his unlicensed motor car on the street, and changed the answer of the jury to the question on contributory negligence, and directed an answer to the effect that plaintiff was guilty of a want of ordinary care which contributed to his injury. Upon the verdict as amended, judgment was entered for the defendant, dismissing the plaintiff's complaint, with costs. From such judgment this appeal is taken.Jesse E. Higbee, of La Crosse, for appellant.

Paul W. Mahoney, of La Crosse, and C. H. Van Alstine and H. J. Killilea, both of Milwaukee, for respondent.

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

[1] The defendant contends that upon the evidence adduced the plaintiff was, as a matter of law, guilty of contributory negligence which precludes his recovering in the case. It is urged that the evidence shows that plaintiff, as he approached and passed the crossing, omitted to exercise ordinary care in failing to look and listen for approaching trains and in driving his car at an unlawful and dangerous rate of speed. An examination of the record discloses a sharp conflict in the evidence on the question of the rate of speed he was driving while approaching and crossing the railroad. The evidence of speed in this case necessarily rests on the opinion of the witnesses in estimating the speed of plaintiff's car from their observation under all the surrounding conditions. The character and nature of the evidence on this point permits of conflicting inferences as to this question, and hence was one within the province of the jury for determination. The trial court, upon review of this evidence, was of the opinion that it presented a jury question. We consider that this ruling cannot be disturbed by this court.

It is strenuously urged that plaintiff approached the track without looking and listening for the approaching cars, and that, had he done so, he would in the exercise of reasonable care have seen the cars in time to have avoided the collision. This claim of the defendant involved consideration of the facts and circumstances respecting the maintenance of a flagman at this crossing and plaintiff's knowledge thereof. If the facts are that such a flagman customarily signaled to approaching travelers to protect them against existing dangers of approaching cars and trains, and plaintiff knew this and relied on the absence of such signal when he approached the crossing as indicating that no car or train was approaching, then plaintiff's conduct as to looking and listening for moving cars while approaching the crossing must be considered in the light of these circumstances. The court declared in Burns v. Rolling Mill Co., 65 Wis. 312, 27 N. W. 43, that:

“The traveler might in this way be lured into danger, when, if no flagman had ever been kept there, he would not have looked for such a signal, but would have looked and listened for other signs of an approaching train. We cannot but approve of the authorities * * * which hold that the withdrawal of a flagman from a crossing where he is usually kept to signal approaching...