Fannin v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 11 November 1924
• Citation: 200 N.W. 651,185 Wis. 30
• Court: Wisconsin Supreme Court
• Parties: FANNIN v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

185 Wis. 30

200 N.W. 651

FANNIN

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of Wisconsin.

Nov. 11, 1924.

Appeal from Circuit Court, Forest County; William B. Quinlan, Judge.

Action by Tom Fannin against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions to dismiss.

After dark on November 1, 1921, near the station of Argonne in said county, plaintiff, 45 years old, with 7 years' experience, driving a new Ford car, with lights and brakes in good condition, ran into defendant's freight train, which was standing squarely across the highway on which plaintiff was approaching.

The grounds of negligence relied upon were those found in plaintiff's favor by the special verdict, viz, that by reason of a fire set by defendant to a pile of ties on its right of way, and to the west of the highway, smoke gathered across the highway of sufficient density to prevent plaintiff from discovering and seeing the freight train in time to stop; that defendant failed in ordinary care in permitting such smoke to so collect and accumulate, and in not having some person stationed at the crossing to warn approaching persons; and in failing to cut the train so as to leave the crossing open; and that each of such was a proximate cause of the damage to plaintiff's person and automobile. They also found no want of ordinary care on plaintiff's part proximately contributing to his injury; also that the train stood on the crossing for 20 minutes. The damages to his person and automobile were separately assessed.

Upon motions by the respective parties after verdict judgment was ordered in plaintiff's favor, and from such defendant appeals.Hayes, Sawyer & Sondel, of Milwaukee (W. A. Hayes, of Milwaukee, of counsel), for appellant.

Classon, Whitcomb & Kuzenski, of Oconto, for respondent.

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

Upon the testimony of plaintiff his own contributory negligence appears so clearly and conclusively as to require a reversal of the judgment and a dismissal of the action. He was long familiar with this crossing. He approaches it after dark at a speed of 15 to 18 miles an hour at which rate he could bring his car to a stop in about two rods. He does not slacken his speed until after he entered the smoke which he claims shut off a view of the standing train, and at a point about one rod from it. Then, realizing that there was not sufficient...