Eilert v. Green Bay & M.R. Co.

• Decision Date: 09 March 1880
• Citation: 4 N.W. 769,48 Wis. 606
• Parties: EILERT v. THE GREEN BAY & MINNESOTA RAILROAD COMPANY
• Court: Wisconsin Supreme Court

4 N.W. 769

48 Wis. 606

EILERT v. THE GREEN BAY & MINNESOTA RAILROAD COMPANY

Supreme Court of Wisconsin

March 9, 1880

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, without stopping to listen for the coming train? Answer. Yes. 9. If you answer that the bell was not rung, and the whistle not blown, as the train approached the crossing that day, then answer this: Was the failure to sound the whistle or ring the bell the cause of plaintiff's accident? Answer. Yes.' The jury also brought in a general verdict as follows: 'We . . . find for the plaintiff, and assess his damages at the sum of $ 1,443.'"

The court denied motions made in proper order on behalf of the defendant--first, for a nonsuit; second, for judgment in its favor on the special verdict; and third, for a new trial. From a judgment in favor of the plaintiff, defendant appealed.

Affirmed.

The appeal was submitted on a brief of Theo. G. Case, as attorney, with H. J. Huntington, of counsel, for the appellant, and briefs of R. J. MacBride for the respondent.

WILLIAM P. LYON, J.

OPINION

LYON, J.

We think the special findings are not inconsistent with each other, or with the general verdict for the plaintiff. One of those findings negatives any want of ordinary care on the part of the plaintiff in driving his team so near the railway track as he did, without stopping to listen for the coming train. The jury also found specially that the bell was not rung and the whistle blown on the engine at the usual place before reaching the highway crossing where the collision occurred, and that the failure to do so was the cause of the injuries complained of. There is no special finding that such failure was negligence; but that is necessarily included in the general verdict for the plaintiff. Under the charge of the court, which contains a clear and accurate statement of the law applicable to the case, and to which no exception was taken, the jury must have found that the failure to give those signals of danger at the proper time was negligence. Otherwise they could not have found for the plaintiff.

The jury having found that the injuries complained of were caused by the negligence of the defendant in failing to give the proper signals, and that the plaintiff was guilty of no negligence contributing thereto, the judgment cannot be disturbed unless we can say, either, first, that the evidence proves conclusively that the plaintiff was guilty of negligence contributing to produce such injuries; or second, that there is no testimony tending to show that the injuries were the result of the negligence of defendant's employees operating the train in question.

1. We cannot say, as a matter of law, that...