Gordon v. Ill. Cent. R. Co.

• Decision Date: 03 December 1918
• Citation: 169 N.W. 570,168 Wis. 244
• Parties: GORDON v. ILLINOIS CENT. R. CO.
• Court: Wisconsin Supreme Court

168 Wis. 244

169 N.W. 570

GORDON

v.ILLINOIS CENT. R. CO.

Supreme Court of Wisconsin.

Dec. 3, 1918.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Thomas Gordon, Sr., administrator of the estate of Thomas Gordon, Jr., deceased, against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

On Sunday, June 24, 1917, at about 10 o'clock in the forenoon, one Thomas Gordon, Jr., then about 28 years old, at a grade crossing in Dane county, between the stations of Bascoe and Belleville, was fatally injured by being struck by a north-bound train of defendant. The train approached this crossing from the south over an embankment 12 to 15 feet high and extending for about 1,600 feet to the south. The highway made the crossing at an inside angle of about 30 degrees, running from the northwest to the southeast. On the side from which he approached, the northwest, there was an average upgrade of 5.6 per cent. for about 230 feet. A fence or railing was placed on each side of the grade, starting about 20 feet from the rail, and extending down the grade for about 180 feet, with a space of about 20 feet between them, which space was occupied by the traveled track. A large railroad sign, 7 feet long by 2 feet high, with letters 8 inches high, was placed on the railroad right of way on the opposite side of the track from which deceased was coming. Between the portion of the highway on which deceased was traveling and the railroad embankment there were trees scattered over the adjoining pasture along the south side of the highway up to within about 55 feet from the track. There were open spaces at several intervals along the highway in a distance of over 300 feet, as the traveler approached the railroad, through which spaces, the longest of which appeared to be about 38 feet, a traveler could get an unobstructed view of an approaching train on the embankment. For a space, however, starting at about 55 feet from the railroad track, and extending back for about 100 feet, the trees and foliage were so thick on the south side of the highway that the view of the approaching train was entirely obscured; between the 55-foot point and one 35 feet from the track the view was partially obstructed, but for the last 35 feet approaching the train the view was clear.

The jury found by the special verdict in substance as follows: (1) There was a failure to exercise ordinary care in reference to the speed at which the engine was running at the time of the collision; (2) there was a failure to ring the engine bell during the approach of the train in the last 80 rods away from the highway crossing; (3) A failure to blow the whistle 80 rods from the crossing; (4) that the failure to ring the bell and blow the whistle as thus found was want of ordinary care; (5) that the injury to deceased was the natural and probable result of the want of ordinary care specified in the first and fourth questions; (6) that an injury should have been foreseen from such conduct; (7) that the deceased failed to exercise ordinary care in approaching and crossing the railroad track; (8) that the failure of the deceased to exercise such care was not more than a slight want of ordinary care.

By the eleventh question they assessed the money loss to the widow of the deceased at $4,375, and by the twelfth question assessed the sum of $600 for the physical and mental pain and anguish which the deceased suffered after his injury and up to the time of his death.

After motions by both parties, the court directed a judgment upon such verdict for the amount thereof in favor of the plaintiff, and from that judgment defendant appeals.Jones & Schubring, of Madison, for appellant.

William Ryan, of Madison, for respondent.

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

Appellant urges that judgment should have been directed for the defendant in this case substantially on the following grounds: That the familiar rule so often repeated by the decisions of this court in former years, requiring travelers on the highway when approaching a railroad crossing to look and listen before crossing, is still in full force and vigor, and that under the facts in this case there was such evident failure on the part of the deceased to make...