Lenz v. Whitcomb

• Decision Date: 21 May 1897
• Citation: 96 Wis. 310,71 N.W. 377
• Parties: LENZ v. WHITCOMB ET AL.
• Court: Wisconsin Supreme Court

96 Wis. 310

71 N.W. 377

LENZ

v.WHITCOMB ET AL.

Supreme Court of Wisconsin.

May 21, 1897.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by Fred Lenz against H. F. Whitcomb and another, receivers of the Wisconsin Central Railroad Company. Judgment for plaintiff. Defendants appeal. Reversed.

This action was brought against the defendants, as receivers of the Wisconsin Central Railroad Company, to recover for injuries to person and property, resulting from a collision with one of appellants' freight trains, at a road crossing a short distance outside of the corporate limits of the city of Oshkosh, about 6 o'clock in the afternoon of July 17, 1895. The negligence alleged was excessive speed and failure to give the statutory signals, which the plaintiff's evidence tended to establish. At the close of the plaintiff's case, the defendants moved for a nonsuit, which was denied, and, at the close of the testimony, the defendants moved the court to direct a verdict in their favor. This was also denied. The jury found that the plaintiff was injured, in person and property, by reason of the defendants' negligence, and that the plaintiff was not guilty of negligence which contributed proximately to the injury. Plaintiff's damages were assessed at $200. Defendants moved to set aside the verdict, and for a new trial, on the ground that the verdict was contrary to the law and the evidence, and for error in refusing to direct a verdict for the defendants. This motion was denied, and the plaintiff had judgment for $200 damages and costs, from which the defendants appealed. The question presented was whether the court erred in refusing to direct a verdict for the defendants, and in denying the motion for a new trial, for the reason that the plaintiff was guilty of contributory negligence. The highway upon which the plaintiff was traveling, with a horse attached to a covered peddling wagon, was called “Oregon Street,” and crosses the railroad track at an angle of about 30 degrees. The south right of way fence, which is 32 feet from the track, if projected, would intersect the highway about 85 feet from the crossing. A point on the highway 500 feet south of the crossing is 209 feet westerly at right angles from the track. At the time of the accident, the field occupying the angle between the track and the highway was planted to corn, and there were nine shade trees along the highway. The track approaching the highway was upon a grade or embankment at the crossing some 2 feet above the level of the road, and, at a culvert about 2,500 feet easterly, some 12 feet above the general field. The highway south of the railroad was substantially level for a long distance. A person standing at any point in the highway, within 500 feet of the crossing, could see a train on the track at any point within nine-tenths of a mile. The plaintiff testified he could, from such 500-foot point, see the track, the cattle run or culvert, and beyond it the next highway crossing, over 2,000 feet. At a 300-foot point about the same view was to be had. Except for the shade trees and the corn, there was no obstruction to vision at any point on the highway; and a man 5 feet 6 inches in height, standing in the highway at the 500-foot point, could see the railroad track over the top of the corn in the field, if 6 or 6 1/2 feet tall. The photographs introduced by the defendants, taken within two days after the accident, show that there was no obstacle to an unobstructed view of the train upon the track, taken from any point on Oregon street, within 262 feet of the railroad crossing, and that the shade trees did not interfere. The fireman could see from the whistling post, 1,320 feet, the horse and wagon approaching the crossing across the corn field, and saw them until the collision. On the day in question, plaintiff and a man named Chase were returning home from a trip in the country, riding in the direction of Oshkosh, on a covered wagon. The cover of the wagon did not extend forward of the seat, and the wagon did not rattle. At Chase's suggestion, they stopped 500 feet south of the track, looked and listened, proceeded then 200 or 300 feet, and, as a precaution, stopped again, and looked and listened. Chase looked to the north, and the plaintiff to the south, saw nothing, and proceeded at a trot to within 20 or 30 feet of the crossing, when plaintiff first heard or saw the train, and the collision followed. After stopping the last time, some 200 or 300 feet from the track, the horse trotted right along till the accident, and neither party looked or listened for the train during the interval. The horse had been raised in a pasture near the railroad, was quiet, would stop when the driver bade him, and there was no trouble driving it with the voice. The evidence was that trains were liable to be running at any time. The day...