Lang v. Chicago & N.W. Ry. Co.

• Decision Date: 06 March 1951
• Citation: 46 N.W.2d 844,258 Wis. 610
• Parties: LANG, v. CHICAGO & NORTH WESTERN RY. CO.
• Court: Wisconsin Supreme Court

Page 844

46 N.W.2d 844

258 Wis. 610

LANG, v. CHICAGO & NORTH WESTERN RY. CO.

Supreme Court of Wisconsin.

March 6, 1951.

E. H. Borgelt, Richard S. Gibbs, and Edmund W. Powell, all of Milwaukee, for appellant.

Smith, Okoneski, Puchner & Tinkham, Wausau, for respondent.

GEHL, Justice.

The material facts here presented are the same as those presented at the former trial. They are found in Lang v. Chicago & N. W. R. Co., 256 Wis. 131, 40 N.W.2d 548. The judgment was reversed because of error in the instructions to the jury. At the first trial, as at the second, the defendant was found guilty of causal negligence with respect to speed and to ringing of the engine bell, and the plaintiff was found guilty with respect to management and control. At the first trial 85% of the causal negligence was attributed to the defendant, and at the second 80% thereof was charged to it.

The question whether the evidence supported the findings of the jury was presented to the court on the former appeal, and, if not expressly, was by implication decided.

If the evidence upon the second trial was substantially the same as that presented upon the first, that decision is the law of the case upon this appeal and must govern. Habenicht v. Chicago, St. P., M. & O. R. Co., 134 Wis. 268, 114 N.W. 497. 'The law upon a proposition involved being once declared upon review of a judgment remains the law of the case in all subsequent trials and reviews, unless for obvious and compelling reasons * * * it is departed from'. Georgeson v. Nielsen, 218 Wis. 180, 260 N.W. 461, 462.

Defendant contends that upon the second trial additional facts were proved, that the evidence was not substantially the same. It contends that plaintiff's testimony at the second trial that he intended to stop for the crossing regardless of whether a train might be coming or not was a substantial variation. In view of the fact that he did not stop it does not seem to us to be so material that he did or did not intend to. As new evidence it also cites plaintiff's testimony that the icy condition of the road rendered it impossible for him to stop his truck as he approached the crossing; this testimony is not substantial departure from that adduced at the first trial. It was brought out by defendant for the first time at the second trial that had the train been traveling within the statutory speed limit it could not have been stopped in time to have avoided the collision. If we understand defendant's contention with respect to the latter testimony it is that the speed of the train did not mislead the plaintiff. That is probably correct but its omission from the first trial did not deter the jury from finding plaintiff guilty of negligence.

What was said in Zimmer v. Fox River Valley Electric R. Co., 123 Wis. 643, 101 N.W. 1099, 1100 is applicable here: 'It is true, defendant has produced more evidence tending to refute it (plaintiff's claim); but in its effect it cannot be said to render the affirmative evidence of negligence incredible, for it is not of the class of evidence, such as some indisputable physical fact, which of itself renders the evidence tending to show negligence necessarily incredible. The additional evidence served but to emphasize the conflicting statements of witnesses, which should be resolved by the jury in passing upon the issues, and in determining the credibility of the witnesses and the weight of the evidence. Under this state of the evidence, the question whether the case should have been submitted to the jury upon the issue of actionable negligence was foreclosed by the former decision, * * *.'

We conclude that the testimony at the two trials was substantially the same and that we may not review our decision upon the first appeal.

Furthermore, we have examined the testimony offered at the second trial and conclude, as we did upon the first appeal, that the findings of the jury are amply sustained.

Defendant requested that there be submitted in the special verdict an inquiry as to whether plaintiff was negligent with respect to failing to stop his truck at a point not less than twenty nor more than forty feet from the main line track. It contends that the provisions of secs. 85.92 and 194.01, Stats. require such inquiry. Sec. 85.92, Stats. requires that the drivers of motor vehicles described in sec. 194.01, Stats. who shall drive the vehicle on or across a grade crossing with the main line track of any railroad, unless the crossing be protected, shall come to a full stop at a distance of at least twenty and not more than forty feet from the track. Sec. 194.01, Stats. describes a 'Contract motor carrier' as 'any person engaged in the transportation by motor...