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

• Decision Date: 19 June 1896
• Court: Wisconsin Supreme Court
• Parties: GROESBECK v. CHICAGO, M. & ST. P. RY. CO.

93 Wis. 505

67 N.W. 1120

GROESBECK

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

Supreme Court of Wisconsin.

June 19, 1896.

Appeal from circuit court, Walworth county; Frank M. Fish, Judge.

Action by Nettie M. Groesbeck, administratrix, etc., against the Chicago, Milwaukee & St. Paul Railway Company, to recover damages for the alleged negligent killing of her intestate. There was a judgment for defendant, and plaintiff appeals. Affirmed.

On the afternoon of the 23d day of December, 1893, at a few minutes after 6 o'clock, Garrett J. Groesbeck, accompanied by his little son, who was seven years of age, in a one-horse open buggy, were driving southward upon one of the principal thoroughfares of Walworth county, called the “Geneva Road,” and while crossing the track of the defendant company nearly at right angles the buggy was struck by the engine of an express train on the defendant's road, and both occupants were instantly killed, the horse being practically uninjured. This action is brought by the appellant, the widow of the deceased, who has been appointed administratrix of his estate. The road in question, as before stated, crosses the railroad track at nearly a right angle, and runs directly north and south; the railroad running practically east and west, but with a slight variation towards the northwest. The highway was a much-traveled highway, and after running some distance north of the railroad track turns west, and enters the village of Elkhorn, which is an incorporated village, the center line of the north and south portion of the highway being the west line of the village. The train in question was a regular express train from the east, and due at the station in the village of Elkhorn, about a mile west of this crossing, about 6 p. m. On the evening in question the train was from five to ten minutes late. At a point about three-fourths of a mile east of the crossing, where the accident happened, the railroad surmounted the crest of a hill, and from that point until it passed the crossing there was a descending grade of 1 foot in 100 feet. The highway as it approaches the crossing from the north also slopes towards the railroad track. The deceased had been in the village of Elkhorn on the afternoon of the day of the accident, and was returning to his home, some distance south and east of this crossing, at the time of the accident. He had been a resident of Walworth county for years, and had lived on the farm which was his home at the time of his death since the preceding 1st day of November, and had ridden over the road in question to Elkhorn a number of times. He was driving a quiet, well-broken horse, and he was a steady, prudent man, accustomed to driving horses. The evening was foggy and damp, raining a little at times. The evidence showed that the train was running at a very high rate of speed, probably at the rate of 60 miles an hour, in an endeavor to make up lost time. No witnesses saw the accident. The engineer of the engine had his head out of the window on the north side, keeping a lookout, and at or about the instant of contact caught a glimpse of something, and thought it was a horse, but could not see anything definite. There was testimony as to some obstruction on the north side of the railroad track, consisting of willow trees, which might interfere with the vision of a person crossing the track from the north on this highway. As this testimony will be referred to in the opinion, it is unnecessary to state it here. At the close of the evidence the defendant moved the court to direct a verdict, which motion was denied by the court. The case was then given to the jury, and, after the jury had deliberated for a time, the court recalled them, and directed a verdict for the defendant, and from judgment upon such verdict the plaintiff appealed.Quarles, Spence & Quarles, for appellant.

Burton Hanson and C. H. Van Alstine, for respondent.

WINSLOW, J. (after stating the facts).

It will be seen from the foregoing statement that the present case is quite similar in its facts to the case of Haetsch v. Railway Co., 87 Wis. 304, 58 N. W. 393. In both cases there was sufficient evidence to establish negligence on the part of the defendant. In both cases the deceased was seated in a wagon, approaching a railroad crossing, with which he was familiar, in the night, a few minutes after a train was due, and was run down by an engine bearing a burning headlight, which could be seen by the deceased at some distance from the crossing, had he looked; and in both cases no one lived to tell the tale, or explain how the wagon came to be on the track at that moment. It is claimed, however, that there are radical differences between the two cases which call for the application of a different rule in the present case from that applied in the Haetsch Case. The material differences claimed to exist between the Haetsch Case and the case at bar may be stated as follows: (1) The accident in that case occurred at a place where there was no restriction on the speed of trains, whereas in the present case the speed of the train was restricted by law to 15 miles an hour after it crossed the center of the highway. (2) In ...