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

• Decision Date: 03 October 1916
• Citation: 159 N.W. 552,164 Wis. 359
• Court: Wisconsin Supreme Court
• Parties: KAUFMANN v. CHICAGO, M. & ST. P. RY. CO.

164 Wis. 359

159 N.W. 552

KAUFMANN

v.CHICAGO, M. & ST. P. RY. CO.^a1

Supreme Court of Wisconsin.

Oct. 3, 1916.

Appeal from Circuit Court, Oconto County; William B. Quinlan, Judge.

Action by Joseph Kaufmann against the Chicago, Milwaukee & St. Paul Railway Company. From judgment for plaintiff, defendant appeals. Judgment affirmed.

This action was brought to recover damages to person and property, caused when an automobile driven by the plaintiff collided with a train of the defendant at Lena on February 21, 1915. Judgment was entered in favor of the plaintiff for $1,180.34, and the defendant appeals. The case was submitted to a jury on a special verdict. The jury found as follows: (1) Plaintiff received injuries to his person at the time and place alleged. (2) The whistle was not blown 80 rods south of the crossing in question. (3) The failure to blow the whistle was a proximate cause of the injuries sustained. (4) The bell was not rung continuously from a point 80 rods south of the crossing until the train stopped. (5) The failure to so ring the bell was a proximate cause of the injuries sustained. (6) The plaintiff was not guilty of gross negligence in attempting to cross the track at the time and place in question. (7) The amount of damages to the person of the plaintiff was $700. (8) The amount of damages to the automobile was $400.C. H. Van Alstine and H. J. Killilea, both of Milwaukee, and A. V. Classon, of Oconto, for appellant.

John B. Chase and Classon & O'Kelliher, all of Oconto, for respondent.

ROSENBERRY, J. (after stating the facts as above).

[1][2] Substantially the only question is whether or not there was sufficient evidence to sustain the findings of the jury as to the blowing of the whistle and the ringing of the bell. Without entering into a lengthy statement of the facts, it appeared by the testimony of four employés of the defendant company that the bell was rung and the whistle was sounded as required by law. On the part of the plaintiff it appeared that he and his companion, at a point 150 feet from the railway track, stopped, looked, and listened for the approaching train, and then proceeded toward the track down a slight grade at low speed in plaintiff's automobile, still looking and listening for the train, and that they heard no bell or whistle. It appears quite conclusively that if the whistle was sounded and the bell rung at a point 80 rods from the crossing, it was done at a time when plaintiff and his...