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

• Decision Date: 16 December 1890
• Citation: 78 Wis. 396,47 N.W. 620
• Court: Wisconsin Supreme Court
• Parties: HAHN v. CHICAGO, M. & ST. P. RY. CO.

78 Wis. 396

47 N.W. 620

HAHN

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

Supreme Court of Wisconsin.

Dec. 16, 1890.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.John T. Fish and Burton Hanson, for appellant.

Stark & Sutherland, for respondent.

TAYLOR, J.

This is an action brought by the respondent to recover damages for personal injuries alleged to have been caused by the negligence of the appellant. The case was tried in the circuit court with a jury. On the trial the jury rendered a special verdict, and upon such verdict the court directed judgment to be entered in favor of the respondent and against the defendant. From such judgment the defendant appeals to this court. It appears from the record that upon the rendition of the special verdict the defendant moved the court “upon the pleadings, record, papers, and proceedings, had and on file herein, and upon the minutes of the judge before whom the issues in this action were tried, the testimony given upon the trial, the judge's charge, and upon the special verdict, for judgment in favor of the defendant herein, dismissing the complaint upon the merits, with costs,” etc. At the same time the plaintiff made a similar motion for judgment in her favor for the amount of the damages assessed by the jury, with costs. The motion of the defendant was denied by the court, and the motion for the plaintiff was granted and judgment entered in her favor.

The learned counsel for the appellant assign the refusal of the court to grant its motion for judgment in its favor as error, upon which they rely for a reversal of the judgment by this court. No exceptions were taken by the appellant to the instructions of the court to the jury, or to the facts found by the jury. If the motion made by the counsel for the appellant ought to have been granted by the court below, it must conclusively appear from the evidence given on the trial, or from the facts found by the jury, or from both, that the plaintiff was guilty of negligence which contributed to her injury, and it is upon this theory that the learned counsel for the appellant argued the case in this court. The following is the special verdict found by the jury: “(1) Was the usual station whistle sounded when the engine was at or near the whistling-post? Answer. Yes. (2) Was the engine bell rung continuously from a place at or near the whistling-post until the engine reached the crossing where the accident occurred? A. Yes. (3) At what rate of speed did the engine run from a point at or near the whistling-post to the place where the accident occurred? How many miles an hour? A. 45 miles an hour. (4) At what rate of speed was the horse traveling from a point about 200 feet east of the point of accident up to the point of accident? How many miles an hour? A. Three and a half miles an hour (5) How far east from the place of the accident could an approaching engine be seen by a traveler on Oakton avenue, going in the same direction the plaintiff was, when at any point thereon between a point 200 feet east from the point of accident, and a point 100 feet therefrom? A. 2,600 feet. (6) How far east from the point of accident could an approaching engine be seen by a traveler on Oakton avenue, going in the same direction plaintiff was, at a point on said avenue about 20 feet east from the point of accident? A. 800 feet. (7) Was the defendant negligent in running the engine at the time of the collision? A. Yes. (8) Was the collision by which the plaintiff was injured caused by such negligence? A. Yes. (9) Was the plaintiff guilty of negligence which contributed to produce the injury suffered by her? A. No. (10) What damage has plaintiff sustained by reason of her injuries? A. $5,000.” It does not appear from the record that any other findings were requested by either party, nor were any exceptions made to the questions submitted to the jury, or to the findings of the jury thereon. The learned counsel for the appellant have argued, with a good deal of force and earnestness, that the facts found by the jury conclusively show that the plaintiff was guilty of contributory negligence, notwithstanding that they have expressly found as one of the facts in the case that she was not guilty of such negligence. That these findings of fact do not of themselves prove conclusively that the plaintiff was guilty of negligence which contributed to her injury seems to us very clear. All that the jury have found as to the distance at which an approaching train could be seen at...