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

• Decision Date: 22 May 1918
• Court: Wisconsin Supreme Court
• Parties: ELLIS v. CHICAGO & N. W. RY. CO. ET AL.

167 Wis. 392

167 N.W. 1048

ELLIS

v.CHICAGO & N. W. RY. CO. ET AL.

Supreme Court of Wisconsin.

May 21, 1918.

Dissenting Opinion. May 22, 1918.

Appeal from Circuit Court, Outagamie County; Edgar V. Werner, Judge.

Action by A. K. Ellis, as assignee of Al. M. Frederick and Ben Schneider, against the Chicago & Northwestern Railway Company. The Wisconsin Traction, Light, Heat & Power Company was made a party defendant, and filed a cross-complaint against the Railway Company. From a judgment denying plaintiff right to recover, and in favor of the Traction Company on its cross-complaint against the Railway Company, plaintiff and the Railway Company appeal. Reversed and remanded, with directions.

In a collision between the defendant Chicago & Northwestern Railway Company, hereinafter called Railway Company, and the Wisconsin Traction, Light, Heat & Power Company, hereinafter called Traction Company, Al. M. Frederick and Ben Schneider were injured, and each commenced suit against both companies to recover damages. One of said suits was tried, in which a nonsuit was granted as to the Railway Company and verdict rendered in favor of Schneider against the Traction Company, for $4,200 damages. Afterwards the plaintiff took an assignment of both claims. Separate actions were commenced by plaintiff against the defendant Railway Company on the claim of each of said injured persons. The original complaints were the same, except as to description of the injuries sustained by the respective assignors, and charged negligence of the defendant Railway Company. Several defenses to the complaints were set up. Afterwards on application of defendant Railway Company the defendant Traction Company was made a party to both actions, and the plaintiff served an amended complaint in each case, setting up negligence on the part of the Traction Company as well as negligence of the Railway Company, and that the negligence of both defendants concurred and was a proximate cause of the collision and the injuries suffered. The Railway Company answered the amended complaint, and among other defenses set up that the Traction Company, and not the plaintiff, was the real party in interest. The Traction Company answered in each case, denying negligence and setting up a cross-complaint against the Railway Company, charging it with active negligence causing the collision and injuries, and further alleging that if any inadvertence on the part of the Traction Company contributed to the collision and injury, such inadvertence was secondary and passive, by reason of which affirmative primary fault of the Railway Company the judgment should provide for execution to first issue against the Railway Company and not against the Traction Company until a showing was made of inability of the plaintiff to collect from the Railway Company. The answer further alleged that if the assignments to the plaintiff were not made in good faith, and that the cause of action had been in effect assigned and released to the Traction Company, and in such event the collision and injuries were proximately caused by the negligence of the Railway Company in the same or greater degree than by the negligence of the Traction Company, and that the Railway Company and Traction Company were not at the time of the collision joint tort-feasors, and that if any negligence on the part of the Traction Company contributed to produce the collision, such negligence consisted of mere inadvertence, and was a mere concurrence with the original primary and active negligence of the defendant Railway Company. The Railway Company demurred to the cross-complaint of the Traction Company in both cases, which demurrer was overruled. Afterwards the Traction Company amended its answer by inserting a second cause of action in its cross-complaint against the Railway Company in which it was alleged in substance that if it should be determined that the causes of action set forth in the complaint were not assigned in good faith to the plaintiff, but assigned and released to the Traction Company, and if it should further be determined that the negligence of the Traction Company was an active and primary cause of the collision, then the negligence of the Railway Company concurred with the negligence of the Traction Company, and that the negligence of each was inadvertent and unaccompanied by any intent to violate the law or rights of the assignors. There are some other allegations to the effect that the operators of the engines, trains, and cars of the respective companies perform, or ordinarily attempt to perform, the duty of keeping a lookout for the engines, trains, and cars of the other company, and in addition thereto the conductor in charge of the cars of the Traction Company in pursuance of the custom and practice flags his car or train across the intersection of the tracks of the two companies. The Railway Company demurred to the cross-complaint contained in the amended answer of the Traction Company, which was sustained, and an order entered, directing judgment thereon in favor of the defendant Railway Company, with leave to the Traction Company to amend its cross-complaint. The answer of the Traction Company was not amended, and the case went to trial on the issues made. Afterwards, upon application of the plaintiff, an order was made, consolidating the actions. The case went to trial, and the following verdict returned:

(1) Was Al. M. Frederick and Ben Schneider injured in a collision at the intersection of the Traction Company and Railway Company tracks on Commercial street in the city of Neenah, Wis., January 21, 1915? Answered by the Court: Yes.

(2) Did the conductor of the Traction Company in charge of the street car, charged with the duty to exercise the highest degree of care reasonably to be expected from human vigilance and foresight in view of the mode and character of the conveyance adopted, and consistent with the practical prosecution of the business of operating the defendant Traction Company's street railway for the safety of its passengers in said car, fail to discharge such duty in ascertaining whether the train of the defendant Railway Company was coming on and over the crossing on the night of the collision? Answer: Yes.

(3) If you answer question No. 2 Yes, then answer this question: Was such failure the proximate cause of the injuries sustained by Al. M. Frederick and Ben Schneider? Answer: Yes.

(4) Did the motorman of the defendant Traction Company in charge of the street car, charged with the duty to exercise the highest degree of care reasonably to be expected from human vigilance and foresight in view of the mode and character of the conveyance adopted and consistent with the practical prosecution of the business of operating the defendant Traction Company's street railway for the safety of its passengers on said car, fail to discharge such duty in ascertaining whether the train of the defendant Railway Company was coming on and over the crossing on the night of the collision? Answer: No.

(5) Not answered.

(6) Did the defendant Railway Company fail to keep a flagman stationed upon Commercial street, at said crossing, on the night of the collision, to warn all persons of the approach of the trains of the defendant Railway Company, contrary to the ordinance of the city of Neenah, Wis? Answered by the Court: Yes.

(7) Was the defendant Railway Company guilty of want of ordinary care in failing to maintain a flagman at said crossing? Answer: Yes.

(8) If you answer question No. 7 Yes, then answer this question: Was such want of ordinary care the proximate cause of the injury sustained by Al. M. Frederick and Ben Schneider? Answer: No.

(9) Was the defendant Railway Company's train operated at a speed in excess of 12 miles per hour when approaching Commercial street crossing and within 20 rods thereof? Answer: Yes.

(10) If you answer question No. 9 Yes, then answer this question: Was such excessive speed the proximate cause of the injuries sustained by Al. M. Frederick and Ben Schneider? Answer: No.

(11) Did the engineer fail to exercise ordinary care in the operation of his engine as he approached the point of collision? Answer: No.

(12) Not answered.

(13) Was the defendant Railway Company, or any of its officers, servants, or employés guilty of any want of ordinary care in storing or permitting the box cars to remain south of Commercial street crossing on the center track of the defendant Railway Company on the night of the collision? Answer: No.

(14) Not answered.

(15) What damages did Al. M. Frederick sustain? Answer: $7,425.

(16) What damages did Ben Schneider sustain? Answer: $4,200.

(17) Was the assignment of the claims of Frederick and Schneider to the plaintiff taken by the plaintiff for and in behalf of the defendant Traction Company? Answer: No.

(18) Which of the following parties is the real party in interest in this action, to wit, A. K. Ellis or the Wisconsin Traction, Light, Heat & Power Company? Answer: A. K. Ellis.

After verdict all the parties filed alternative motions to change the answers to certain questions in the special verdict. The motion of the defendant Railway Company being: (1) For judgment upon the verdict and undisputed evidence; (2) for an order changing the answers to questions 7 and 9 in the special verdict from “Yes” to “No”; (3) for judgment notwithstanding the verdict; and (4) to change the answer to question 17 from “No” to “Yes,” and the answer to question 18 from “A. K. Ellis” to “Wisconsin Traction, Light, Heat & Power Company.” The court changed the answer to question No. 10 from “No” to “Yes,” and also changed the answer to question No. 17 from “No” to “Yes.” The court further ordered that the plaintiff was not entitled to recover, and that his rights were merged with those of the Traction Company, and ordered judgment in favor of the Traction Company and against the Railway Company for one-half of the amount paid by the ...