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

• Decision Date: 30 April 1929
• Citation: 225 N.W. 205,198 Wis. 569
• Parties: HENDLEY v. CHICAGO & N. W. RY. CO. ET AL.
• Court: Wisconsin Supreme Court

198 Wis. 569

225 N.W. 205

HENDLEY

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

Supreme Court of Wisconsin.

April 30, 1929.

Appeal from an order of the Circuit Court for Milwaukee County; John J. Gregory, Circuit Judge.

Action by Bruce Hendley, by guardian ad litem, against the Chicago & Northwestern Railway Company and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.--[By Editorial Staff.]

Plaintiff, by guardian ad litem, brought this action July 16, 1928, to recover for personal injuries on November 1, 1927, at 1:45 a. m., sustained by a collision between the automobile in which he was riding, with defendant's freight train then standing on a highway crossing in the village of Dousman, Waukesha county. From an order of September 20, 1928, sustaining the demurrer of the railroad company to the complaint, plaintiff appeals.

This action was against the respondent here, one Henry Gramling and his wife, and their insurance carrier. The individual defendants, it is alleged, permitted their son Robert to use their automobile, insured with said insurance carrier, to convey the plaintiff and several others from Milwaukee to a point near the village of Dousman.

It was alleged that the automobile so used was, to the knowledge of the defendant owner, defective because of inefficient brake bands not in compliance with section 85.09, Stats.; that the headlights were not sufficient under section 85.13; that because of such insufficient lights the driver Robert was unable to see defendant's standing train until within 50 feet thereof; that because of the defective brakes he was unable to stop said automobile in time; and asserting liability of the defendant owner in permitting the taking of said car for such trip knowing the insufficiency of headlights and brakes.

Summarized, the complaint asserted as to the defendant railroad: That no employé was stationed at the village highway crossing at the time in question to give a warning or signal of the standing of their freight train on said crossing where it had so stood for more than 15 minutes; that there were no lights or illumination at said crossing on the dark night in question; that all of such facts were to the knowledge of the railroad company's employés; that the presence of such freight train was, to the knowledge of said employés, a menace to persons on the highway; it also alleged negligence in that there was thereby an obstruction of the crossing without regard to the rights of persons lawfully using the highway.Alexander, Burke & Clark, of Milwaukee, for appellant.

John F. Baker, of Milwaukee, for respondents.

ESCHWEILER, J.

[1] We are satisfied that the demurrer by the railroad company to this complaint, on the ground that the complaint did not state facts sufficient to constitute a cause of action as against such defendant, was properly sustained.

Reliance is placed by appellant upon section 343.487, Stats., found in the chapter regulating offenses against property, and making it unlawful to stop railroad trains upon a highway crossing outside of cities for longer than 10 minutes except in cases of accident and where the penalty is a fine or imprisonment of the employé only in charge of such train or responsible therefor.

We see no causal connection between the alleged violation of this provision and the injury to the plaintiff upon which could be predicated a liability of the defendant railroad company. It is clear that it was not because of the standing of the train the extra 5 minutes beyond the statutory 10 minutes that could make the railroad company...