Hains v. Johnson
| Decision Date | 28 October 1913 |
| Parties | HAINS v. JOHNSON. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.
Action by Frank Hains against W. O. Johnson, as receiver. Judgment for the plaintiff, and defendant appeals. Reversed and remanded, with instructions to dismiss.Fisher & Fisher, of Kenosha (Bull & Johnson, of Chicago, Ill., of counsel), for appellant.
Robert Verne Baker, of Kenosha, for respondent.
The respondent is operating as receiver the interurban railway of the Chicago & Milwaukee Electric Railroad Company, and the plaintiff's decedent, Mrs. Mary Yurik, while riding with two others, was killed in a collision at a highway crossing of said railway on July 14, 1912. The jury found by special verdict that the respondent was negligent in the operation of the car which collided with the vehicle in question and this negligence caused the death of Mrs. Yurik. This vehicle was what is known as a top buggy without side curtains. It was drawn by a quiet manageable horse, and it was occupied at the time of the accident by the deceased and another lady sitting in the single seat with a driver, one Alexander Mikulick, sitting on their knees. The right of way at the crossing is 100 feet wide; the street is 64 feet wide. The highway runs east and west, the railway north and south, and there are two railway tracks, one to the west for south-bound cars and one to the east for north-bound cars. From the east line of the right of way to the nearest rail on the east or north-bound track is 41 feet, and this distance, plus the width of the east track, plus the distance between the tracks, brings the traveler to the place of the collision. Mikulick was driving west on this street. There is evidence from which the jury might infer that when one is approaching this crossing from the east his view to the north is obstructed until he enters upon the right of way. But from thence his view is clear and unobstructed. Approaching the right of way his view to the south is also somewhat similarly obstructed. This is no doubt a dangerous grade crossing, considering the speed with which the interurban cars are operated. No question is made but that the contributory negligence of Mikulick, if any, is imputable to deceased. Mikulick testified that while approaching the right of way he saw a south-bound car cross the street, and that an electric bell, which usually rang when cars were coming near the crossing, was not ringing at the time in question. While on the right of way and approaching the track he first looked to the north along the track and then to the south and did not see anything and drove along until the instant before the collison, when he saw the car for the first time. He was going on “a kind of a small trot.”
Numerous precedents in this state establish a rule of diligence to be observed by travelers on a highway approaching a grade crossing of a railroad. There are here no...
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