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

• Decision Date: 16 March 1894
• Citation: 58 N.W. 393,87 Wis. 304
• Court: Wisconsin Supreme Court
• Parties: HAETSCH v. CHICAGO & N. W. RY. CO.

87 Wis. 304

58 N.W. 393

HAETSCH

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

Supreme Court of Wisconsin.

March 16, 1894.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Fredericke Haetsch, as administratrix of the estate of Hans Henry Haetsch, deceased, against the Chicago & Northwestern Railway Company, to recover for the death of plaintiff's intestate, caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Reversed.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

Turner & Timlin, for respondent.

ORTON, C. J.

There are several errors assigned by the appellant's counsel, relating to the testimony, and the instructions of the court to the jury, some of which appear to be sufficient to work a reversal of the judgment in this case, and make it proper that there should be a new trial. But we are so clearly and firmly of the opinion that the plaintiff ought not to have recovered, on the evidence, that we deem it our duty to reverse the judgment on the merits of the case. At the conclusion of the testimony, appellant's counsel moved the court to direct a verdict for the defendant. We shall confine our consideration of the case to the error of the court in denying said motion, in comparison with which the other errors are unimportant, and need not be considered. We shall further restrict our inquiry to the single question of the contributory negligence of the deceased. It is on that fact alone (which we are of the opinion was clearly established by the evidence) the court ought to have granted the motion. The negligence of the appellant company in not ringing the bell or blowing the whistle at the proper place, which was the only negligence charged, was the subject of conflicting and contradictory testimony, and therefore a proper question for the jury, and not for the court. It is not a pleasant duty to reverse the judgment on this ground, where our duty is in conflict with our sympathy. But we must follow where our best legal judgment leads us, and the law is our only guide.

The facts known of this unfortunate accident are very few, but, as we shall see, they are vastly important, in solving the question of the negligence of the deceased. The railway of the defendant, from Madison to Milwaukee, runs nearly east; and a highway called “Janesville Plank Road,” or “Forest Home Avenue,” runs from the city southwesterly, and crosses the railway near Layton Park station, and so on into the town of Lake. The deceased was about 40 years of age, and had a wife and two children. He lived in the town of Lake, about a mile and a half from this crossing. He was a gardener, and marketed his products in the city, and was accustomed to pass over this crossing, back and forth, and was acquainted with the locality, and with the running of the trains over the crossing. On the 31st day of October, 1891, in the evening, about half-past 7 o'clock, he was returning, in his one-horse, empty wagon, from the city, towards his home. The train was due at the crossing 25 minutes before 8 o'clock, but on that evening it was about five minutes late. His horse and the forward wheels of his wagon had passed over the crossing, when the train from Madison, on this railway, collided with the rear of the wagon, and threw the deceased to the ground, and killed him instantly. The night was dark and windy, and there was much dust flying in the air about the highway. The wind was blowing in the direction the train was running. The jury found a general verdict in favor of the plaintiff, and therefore must have found that the bell on the engine of the train was not rung or the whistle blown at the proper place before approaching this crossing. The train was running about 20 miles an hour. For about 1,000 feet on the highway, coming towards the crossing, the deceased could have seen the headlight of this train at several places, but, most of the distance, his view of it was obstructed by trees and other objects. But the fact is undisputable that, for the last about 100 feet before reaching the crossing, he could have seen the headlight of the approaching train and there was no obstruction of his view, whatever. When he reached that point on the highway, the train could not have been much over 500 feet from the crossing, and the distancebecame less as he approached it. The blazing headlight could have been seen by him at every step of that 100 feet, and, if he had listened, he would have heard the rumbling noise of the train. The headlight is elevated, that it may be seen, and cast its light a long distance ahead and around. One of the principal witnesses for the plaintiff, Phillip Dooley, was the keeper of the tollgate just south of the crossing; and he testified that he thought there were some evergreens in the way at one place, but they were no higher than the headlight, and there was no obstruction to the view for 75 or 80 feet from the crossing. On the map used on the trial, where all obstructions to the view are supposed to be marked, there is none for that 100 feet, and the evidence appears to be conclusive that, for that distance from the crossing, there was nothing to obstruct the view. But, if the deceased had an unobstructed view of the approaching headlight for 75 or 80 feet before he came to the crossing, the material fact is not changed or impaired,--that, if the deceased had looked while approaching the crossing, he would have seen the headlight. There was but one living witness to the collision, and that was one George C. Kuhns, who was fireman on the engine. He testified that he was sitting on the left-hand side of the engine, ringing the bell; when the train was about 10 feet from the crossing, he saw a man urging his horse to get across; and that when he was 8 or 10 feet from the crossing the horse was on a run, and the man was striking him, and urging him on, and, before he got across, the engine struck him. On cross-examination his testimony before the coroner's inquest was stated to him, and it was insisted that he then testified that he saw the horse on a run when on the crossing. But the witness still repeated that the man was 8 or 10 feet from the rail, and that he was in the act of striking his horse, and he struck him more than once. One thing seems to be quite certain, and that is, if the horse was on the crossing, and on the run, when the fireman first saw him, and the train was then at the cattle guard, or 10 feet from the crossing of the highway, the wagon would have escaped the collision. Two or three jumps of a running horse would have carried the wagon over in much less time than the train could reach it. The only significance of this evidence is that the horse was on a run on or so near the crossing. The deceased could have seen the...