Heaney v. Chi. N. W. Ry. Co.

• Decision Date: 09 January 1934
• Court: Wisconsin Supreme Court
• Parties: HEANEY v. CHICAGO & N. W. RY. CO. PETERSON v. CHICAGO & N. W. RY. CO.

213 Wis. 670

252 N.W. 173

HEANEY

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

PETERSON

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

Supreme Court of Wisconsin.

Jan. 9, 1934.

Appeals from judgments of the Circuit Court for Oconto County; Henry Graass, Circuit Judge. Affirmed.

Actions by Elsie Peterson, the surviving widow of Oscar Peterson, deceased, and by Christ Heaney, special administrator of the estate of Kenneth Heaney, deceased, to recover damages for the deaths of Peterson and Heaney, alleged to have been caused by negligence of defendant. A jury trial resulted in verdicts, upon which the court entered judgments for plaintiffs, and defendant appealed.

John F. Baker, of Milwaukee, for appellant.

Lehner & Lehner and Adolph P. Lehner, all of Oconto Falls, and V. J. O'Kelliher, of Oconto, for respondent.

FRITZ, Justice.

Defendant appealed in these actions from judgments recovered against it for damages for the deaths of Oscar Peterson and Kenneth Heaney, who were instantly killed in a collision between a Ford coupé in which they were riding and a locomotive, drawing one of defendant's passenger trains, on March 9, 1932, at about 11 o'clock a. m. The collision occurred at the right-angled grade crossing of an east and west graveled public highway by a railway track of the defendant, in a farming region. The automobile was being driven eastward by Heaney, who was a high school graduate, 21 years of age, and who resided about 3 miles from that crossing. Peterson, who was a passenger in the automobile, was 44 years of age, an uncle of Heaney, and resided some distance from that intersection, but had crossed it on a couple of occasions. In a special verdict the jury found that the train was run over the crossing without blowing the whistle and without ringing the locomotive bell continuously from a distance of 80 rods south of the crossing until it was reached; that the failure in each of those respects was a proximate cause of the collision; that Peterson did not fail to exercise ordinary care for his own safety; and that Heaney failed to exercise such care, and such failure was a proximate cause of the collision, but that it was not more than a slight want of ordinary care. As, on motions after verdict, the trial court approved those findings, and the defendant's failure to blow the whistle and ring the bell constituted negligent omissions of the defendant to comply with section 192.29 (4), Stats., by reason of which under section 192.29 (6), Stats., the fact that a slight want of ordinary care on Heaney's part contributed to his injury does not bar a recovery, judgments were ordered for the recovery by plaintiffs of the damages assessed by the jury. Defendant contends that the evidence does not support the findings in a number of respects.

[1][2][3][4] In relation to the alleged negligence on its part, defendant contends that there was not sufficient evidence to go to the jury upon the questions of the failure to ring the locomotive bell continuously from a point 80 rods from the crossing and until it was reached and the failure to blow the whistle 80 rods from such crossing; and, furthermore, that such negligence, if proven, did not constitute a proximate cause of the injuries. In determining whether there is sufficient evidence to sustain the jury's findings, it must be borne in mind that, “if the evidence is conflicting, or if the inferences to be drawn from the credible evidence are doubtful and uncertain, and there is any credible evidence, which under any reasonable view will support or admit of an inference either for or against the claim or contention of any party, then the rule that the proper inference to be drawn therefrom is a question for the jury, should be firmly adhered to, and the court should not assume to answer such question either upon a motion for nonsuit or direction of verdict, or by substituting another answer after the verdict is returned.” Trautmann v. Charles Schefft & Sons Co., 201 Wis. 113, 115, 116, 228 N. W. 741, 742.

It is true that there is some evidence on the part of the train crew and several passengers that the whistle and bell were duly sounded; and Roy Wilson, who was working between his house and barn about 80 rods to the west and north of the crossing, testified that he heard the whistle blown at about the whistling post, which was 1,358 feet south of the crossing, and then one or two short blasts and a regular crossing whistle, and also that he heard the bell ring, just before and after the crash, when the train was at the crossing.

However, plaintiffs relied on the testimony of three men who were clearing brush about 75 feet east of the track, and opposite a stump pile which was near the track and 500 feet north of the whistling post. Between them and the track there were some trees which somewhat interfered with their view of a train coming from the south, until up to 750 feet south of the crossing, but there was no such interference while a train was going over those 750 feet. Those men were intent upon the arrival of the train as a signal for suspending work for their midday meal. Their testimony was to the effect that they could and did see the train as it moved all of the way from the whistling post to the crossing; that they could see and hear that the bell was not rung at all between that post and the crossing, but that they saw and heard it rung when the train was stopped and backed up, after the collision. In relation to the whistle they testified that they could hear and see that it was neither blown at the whistling post nor until the engine was from 120 to 180 feet north of the stump pile, which would be at about 600 feet north of the whistling post or 750 feet south of the crossing. Between that point and until the engine was over the crossing they heard four blasts and saw the escaping steam. Their testimony in those respects was challenged by conflicting statements testified to by a stenographic reporter, who had noted the answers made by those men to questions which were put to them on an investigation made by the defendant on the day after the collision. However, conflicts, if any, between their testimony on the trial and their former statements afforded no basis for the exclusion of their testimony by the court, or for holding that the plaintiffs were bound by prior ex parte conflicting statements made by such witnesses. It was nevertheless for the jury to pass upon their credibility and the weight of the testimony which they gave on the trial, and, if the jury believed the latter to be true, then it was within its province to find that the defendant neglected to ring the bell and to blow the whistle as required by section 192.29 (4), Stats. Defendant's contention that its failures in those respects were not proximate causes of the collision will be considered after discussing its contentions that Peterson was guilty of more than a slight want of ordinary care; and that the negligence of which the jury found Heaney guilty, and which it also found was a proximate cause, must have consisted of his failure to look and listen, and, if so, amounted to more than a slight want of ordinary care.

In respect to those contentions, the following facts, the existence of which is established or was at least fairly inferable by the jury under the evidence, are material: The surface of the earth along the public road west of the crossing, and to the south of that road and immediately west of the railway track, was somewhat rolling. The surface of the public road was 1.4 feet higher than the railway track at a point 50 feet to the west thereof; and 3.7 feet, and 4 feet higher at points, respectively, 50 feet, and 240 feet further to the west thereof. At about the latter distance, i. e., 340 feet west of the track, there was the first railway sign for warning a traveler...