Keegan v. Chi., M., St. P. & P. Ry. Co.
Decision Date | 10 June 1947 |
Citation | 251 Wis. 7,27 N.W.2d 739 |
Court | Wisconsin Supreme Court |
Parties | KEEGAN et al. v. CHICAGO, M., ST. P. & P. RY. CO. et al. |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Green County; Jesse Earle, Judge.
Reversed.
Action commenced September 3, 1946, by Christina Keegan, administratrix of the estate of Richard Keegan, deceased, and Employers Mutual Liability Insurance Company, a corporation, plaintiffs and respondents, to recover from the Chicago, Milwaukee, St. Paul and Pacific Railroad Company, a corporation, and Henry A. Scandrett, Walter J. Cummings, and George I. Haight, trustees, defendants and appellants, for the injury and death of the deceased, Richard Keegan, as a result of a collision of a truck in which Richard Keegan was riding as a passenger and a train of defendant company. Upon a trial the issues under the pleadings and evidence were submitted to a jury, and upon its special verdict judgment was entered for the plaintiffs against the railroad company. Defendants appeal. The material facts will be set forth in the opinion. Bender, Trump & McIntyre, of Milwaukee (Rodger S. Trump, of Milwaukee, of counsel), for appellants.
Louis A. Koenig, of Monroe, and Thomas W. Pierce and Wilkie, Toebaas, Hart & Jackman, all of Madison, for respondents.
The question presented is whether there is evidence to sustain the finding of the jury that appellant railroad company was guilty of causal negligence in failing to blow its whistle as the train approached the crossing where the collision occurred. The jury found appellant kept a proper lookout and the engine bell was ringing continuously from the time the engine was twenty rods from the crossing until it reached the crossing where the collision occurred.
Richard Keegan and Marshall DeRemer were employed by the L. C. L. Transit Company, whose business was hauling freight for hire. The Transit Company was a licensed carrier and picked up cheese and meat over a route including several cities and villages. February 21, 1945, at about 4:40 p. m., Marshall DeRemer was driving a 1939 model Ford truck on Thirteenth Avenue in the city of Monroe, and Richard Keegan was riding with him, sitting in the front seat. It was daylight and the weather was clear. When the truck reached the railroad right of way it was traveling between ten and fifteen miles per hour. The truck was traveling south. There was a coal shed north of the railroad right of way and west of Thirteenth Avenue, and a warehouse north of the railroad right of way and east of Thirteenth Avenue. Thirteenth Avenue is sixty feet wide from property line to property line. Four railroad tracks cross Thirteenth Avenue in an easterly and westerly direction, Thirteenth Avenue running north and south. The most northerly track is a ‘house track’ just south of the warehouse and coal shed. 17.27 feet south of the ‘house track’ is a stub track which ends just west of Thirteenth Avenue, and does not cross the avenue. 34.6 feet south of the stub track is the main track and there are two spur tracks south of the main track. There was a carload of cinders and some coal cars of the gondola type on the stub track. An eastbound combination train was on the main track, consisting of an engine, tender, combination mail and express car and passenger car. The train was to stop at the depot about a block east of Thirteenth Avenue. The brake was on and the train was slowed down to about twelve miles per hour when it entered Thirteenth Avenue. The fireman on the engine could see the truck from the time it passed the coal shed, and the truck driver could have seen the train from the time he passed the coal shed unless the view was obstructed by the cars on the stub track. After passing the stub track, the truck driver had a clear vision to the west, or the direction from which the train was coming, for a distance of at least six hundred feet.
The fireman saw the truck approaching at all times after it passed the coal shed, but the truck driver did not see the train until he was right on it when Keegan said ‘Hold her.’ He said he was looking straight ahead at a caboose and some freight cars on a spur south of the main track because there were some men there dressed as trainmen, and he thought they might signal that these cars were to be moved. The truck driver had crossed these tracks an average of three times a day for fifteen years, and said he could have stopped the truck within ten feet if he had seen the train. The fireman observed the truck coming along slowly between ten and fifteen miles an hour, and assumed it was going to stop at all times until it got ten or fifteen feet from the track, when it became evident it was not going to stop. He then called to the engineer to ‘plug her’ which is an emergency exclamation for quick action. The...
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