Linden v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 07 October 1913
• Citation: 156 Wis. 527,143 N.W. 167
• Court: Wisconsin Supreme Court
• Parties: LINDEN v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

156 Wis. 527

143 N.W. 167

LINDEN

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of Wisconsin.

Oct. 7, 1913.

Appeal from Circuit Court, Taylor County; G. N. Risjord, Judge.

Action by Anna Linden, as administratrix of Matt Linden, deceased, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss the complaint.

This is an appeal from a judgment of the circuit court for Taylor county entered in favor of the plaintiff for the sum of $3,500 and costs, upon a verdict in plaintiff's favor for damages for the death of her husband, who died from injuries received by him in a collision with one of defendant's freight trains on a crossing of defendant's railroad and a highway in the town of Westboro.

Westboro village is an unincorporated village in Taylor county. The railroad crosses the main street of the village at right angles; the railway running from north to south and the highway east and west. It appeared by the evidence that at the place in question the decedent approached the track from the west; that the street was free from other teams and vehicles. After decedent passed a millinery store situated 133 feet west from the crossing, there was an open view for some 700 to 800 feet to the north along the railroad right of way to a cut, intercepted only by a beerhouse situated 200 feet north of the crossing and a box car standing on a siding halfway between the beerhouse and the crossing. These two objects partially intercepted his view of the train while he was driving from a point 133 feet west of the crossing to a point 45 feet from the crossing, and thereafter there was nothing to obstruct his view for a distance of 630 feet north along the track and of trains thereon. It appears that deceased was somewhat hard of hearing and had on the day of the accident been drinking liquor in sufficient quantity to intoxicate him to some extent, and that he drove from a point some 100 feet west of the crossing to a point within 45 feet of the track without stopping in the direction of the approaching train. The engine struck the rear part of the bobsleighs upon which Linden was riding, throwing him some 20 feet and killing him almost instantly.

The complaint charges the defendant with negligence in failing to sound the whistle, to ring the bell, and in running its train over this crossing at an excessive rate of speed, and that such negligence was the proximate cause of Linden's death. The defendant alleges that the train was not running to exceed 25 miles per hour, and that the required signals were given as the train approached the crossing, and denied that the train was operated at an excessive rate of speed.

The evidence upon which the plaintiff depends to show that the engine bell was not rung was given by the following witnesses sworn in her behalf: Bergman, Wennerstrand, Roinilla, and Lopno.

The witness Bergman stated that he was hitching his horse in front of the Carlson and Dahl store, 360 feet from the crossing, when he witnessed the accident. He saw Linden's team and sleigh when struck by the engine and says: “They were just going across the track going east. The whistle was blown just a moment before he was struck. The train was then at the cattle chute 500 feet from the crossing.” And he further states that was the only place it did blow. In answer to an inquiry whether the bell was ringing as the engine approached the crossing, he said: “It did not ring. I was 360 feet from the crossing. Nothing between me and the track to interfere with my seeing and hearing.” He further states that the alarm whistle was the first thing that attracted his attention to the train which was about 500 feet north of the crossing; that he did not hear anything before that nor think anything about the approaching train. To the question whether he was able to hear anything else while the whistle was blowing, he answered: “No, I could not hear anything else.” He further testified that he did not think the bell was ringing while the whistle was sounding and that he saw no motion of the bell.

The witness Wennerstrand testified that the first he noticed of the approaching train was when he heard the danger signal blown about 500 feet from the crossing, and that at that time he was about 60 rods from the track driving his team parallel with the track toward Center street, which crossed the track and on which Linden was driving; that he had paid no attention to the train before the whistle sounded; and that he did not hear the bell ringing.

The witness Roinilla testified that she heard the danger whistle while in the post office some 103 feet north of Center street; that she rushed out and ran to Center street and was then very close to the track and saw the accident; and that the bell was not ringing. She also stated the bell could not be heard while the whistle was blowing.

The witness Lopno testified that she was in her house on the second floor over Lapno's saloon, which is about 133 feet from the crossing; that she heard the train whistle but did...