Jordan v. Osborne

CourtUnited States State Supreme Court of Wisconsin
Citation133 N.W. 32,147 Wis. 623
Decision Date14 November 1911


Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.

Action by Henry F. Jordan, administrator, against W. I. Osborne and others, receivers. Judgment for defendants, and plaintiff appeals. Affirmed.Houghton, Neelen & Houghton, for appellant.

Fisher & Fisher (Bull & Johnson, of counsel), for respondents.


The plaintiff was nonsuited, and the inquiry is, Was there a prima facie case made for the jury, giving the evidence and all reasonable inferences therefrom their utmost probative effect? On the subject of defendants' negligence, it is shown that they are operating as receivers an electric interurban railway running between Milwaukee and Chicago. The deceased came to his death on October 2, 1908, in consequence of a collision between his automobile and defendants' electric car at a highway grade crossing of the interurban railway between Racine and Kenosha. The schedule time of the car between Racine and Kenosha was 20 minutes, the distance 10 miles, and there were in this distance 5 or 6 stops. The distance between Racine and Evanston was 50 miles, and the time 1 hour and 52 minutes, including stops. So that the whole distance had to be covered at a rate of between 26 and 27 miles an hour, and the distance between Racine and Kenosha at the rate of 30 miles an hour, including stops.

[1] The plaintiff's evidence is directed to two grounds of negligence, namely, excessive speed and failure to signal for the crossing. The highest estimate of speed is 50 miles per hour. We cannot close our eyes to the fact that, in order to obtain an average speed, including slackening and stops, of 30 miles an hour, the speed at some points must reach very close to, if not quite touch, 50 miles per hour. It is common knowledge that passenger trains on a good roadbed frequently exceed this speed between stations. The “great mass of mankind” which inhabits this part of the world demands such rapid transit. The competitors of the defendants freely employ it. No statute forbids it. In the absence of some peculiar circumstances or particular conditions, other than a country highway crossing somewhat obscured by trees and buildings, it is not for this court or for a jury to say that such speed in the open country is illegal or negligent. At the highway crossing, there was a small station, where the electric car stopped on signal for the reception and...

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18 cases
  • Eastern Air Lines v. Union Trust Company
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 8, 1955
    ...v. Union P. R. Co., 1916, 100 Neb. 304, 160 N.W. 86; Young v. Erie R. Co., 1913, 158 App.Div. 14, 143 N.Y.S. 176; Jordan v. Osborne, 1911, 147 Wis. 623, 133 N.W. 32; Hubbard v. Boston & A. R. Co., 1893, 159 Mass. 320, 34 N.E. 459. Under the rule just stated Shaw's negative testimony was ins......
  • Johnson v. Ætna Life Ins. Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 6, 1914
    ...Ry. Co., 86 Wis. 466, 56 N. W. 1099;Cook v. Ry. Co., 98 Wis. 624, 74 N. W. 561, 40 L. R. A. 457, 67 Am. St. Rep. 830. In Jordan v. Osborne, 147 Wis. 623, 133 N. W. 32, a witness testified that he did not hear the motorman blow the whistle as he approached a highway crossing. A jury might fi......
  • Okla. Union Ry. Co. v. Houk
    • United States
    • Supreme Court of Oklahoma
    • September 16, 1924
    ...35 Utah 137, 99 P. 676; Goss v. N. P. R. R. Co., 48 Ore. 439, 87 P. 149; Richards v. Railroad, 41 Utah 99, 123 P. 933; Jordan v. Osborne, 147 Wis. 623, 133 N.W. 32; Knoxes v. P. and R. Ry. Co., 202 Pa. 504, 52 A. 90; Van Patten v. Schenectady St. Ry. Co., 80 Hun 494, 30 N.Y.S. 501; Draper v......
  • Jensen v. Oregon Short Line R. Co.
    • United States
    • Supreme Court of Utah
    • January 18, 1922
    ...... are such as to render it highly improbable that they could. hear, we think the rule should be and is. otherwise"--citing Jordan v. Osborne ,. 147 Wis. 623, 133 N.W. 32; Menard v. Boston,. etc., R. R. , 150 Mass. 386, 23 N.E. 214. . . Six. witnesses in the ......
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