Miller v. Illinois Cent. R. R.

• Decision Date: 03 October 1967
• Citation: 152 N.W.2d 898,36 Wis.2d 184
• Parties: , 32 A.L.R.3d 1348 Joe E. MILLER, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD, a foreign corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 898

152 N.W.2d 898

36 Wis.2d 184, 32 A.L.R.3d 1348

Joe E. MILLER, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD, a foreign corporation Defendant-Respondent.

Supreme Court of Wisconsin.

Oct. 3, 1967.

Eisenberg & Kletzke, Milwaukee, for appellant. Jerome F. Pogodzinski, Milwaukee, of counsel.

Peterson, Sutherland, Axley & Brynelson, Madison, for respondent.

HALLOWS, Justice.

This appeal presents three questions: (1) Whether the trial court should have found as a matter of law the railroad was causally negligent in not maintaining a proper warning sign on the west side of the crossing; (2) whether the findings of the jury in respect to negligence and damages are supported by the evidence and were the result of perversity; and (3) whether a new trial should be granted in the interest of justice because of misconduct of the jurors.

The facts concerning the accident are in dispute. According to Miller's version, on March 5th, 1964, he was driving east on County Highway PD (McKee Road) in the town of Fitchburg, Dane County, Wisconsin. He was on his way to Madison and was unfamiliar with the road, which was wet and slushy with patches of snow. Prior to the collision which occurred about 1 o'clock in the afternoon he saw a sign on a hill about 500 feet west of the place where the railroad crossed the highway but the sign was covered with snow and he thought it was a curve sign. He proceeded at 35 to 40 miles per hour over a hill and when he was about 35 to 40 feet from the track he heard a noise to his right, was aware the train was coming, put on his brakes, skidded some 12 feet and came to a stop on the highway with the front of his car slightly across the railroad track. He did not hear a warning whistle from the train until after he was struck. He did not see any wig-wag warning device at the east side of the crossing and there was no sign or signal on the west side. At the point where the railroad track crossed the road the view from the highway to the south of any oncoming train is obscured by hills on both sides of the track.

According to the railroad's version of the accident, the railroad sign west of the crossing was free of snow and as Miller approached the track from the west, two of their witnesses were approaching from the east. According to one of these, Officer Booth, he first saw Miller approach the crossing when their respective cars were about 200 to 300 feet from the track. Booth heard the train's whistle and bell, saw the wig-wag crossing warning device on the east side of the crossing working and heard its audible signal. The same warnings were heard and seen by the other witness who was driving a tractor on the road in back of Booth's car. Booth stopped his car on the east side of the crossing and the train passed in front of him. After the train cleared the crossing, Booth noticed Miller's car was no longer on the road but was in the ditch on the west side of the crossing in a severely damaged condition. Booth did not see the train strike Miller's car. The engineer testified he saw Miller when Miller was 200 to 300 feet west of the crossing and Miller did not slow his speed and struck the side of the engine.

I. Lack of a railroad warning signal.

The trial court found the railroad was negligent in not providing the proper warning signal as required by sec. 192.29 (5), Stats., ¹ and submitted the causation question to the jury which found the negligence not causal. Miller contends the failure to maintain this sign as a matter of law was causal and the only cause of the accident. He argues he was traveling only 35 to 40 miles per hour on a road the speed limit on which was 65 miles per hour, that the road was wet, slushy, and partly covered with snow which obscured the track, that his view of a train coming from his right was obstructed by the physical condition of the land and because the train gave no audible signal he was not aware of its presence on the track until he was 35 to 40 feet from the track. He concludes his awareness of railroad tracks and of a possible train would have occurred much sooner and in time to avoid the accident if the railroad had a proper sign on the west side of the track. Miller also argues he was entitled to drive up even with the wig-wag signal and if a sign had been properly placed on the west side of the crossing he would have stopped west of the track rather than on it.

If Miller's version were the only credible view of the evidence or if the jury had accepted his version, he no doubt could claim the benefits of Shaver v. Davis (1922), 175 Wis. 592, 185 N.W. 227, and McLaughlin v. Chicago, M. St. P. & P.R. Co. (1966), 31 Wis.2d 378, 143 N.W.2d 32, in both of which the juries found the railroad negligent. These cases are not controlling on the question of whether the railroad was negligent as a matter of law. Miller's version of the accident was not the only reasonable one and the evidence presented a proper jury question of whether a proper railroad sign on the west side of the track would have under the circumstances favorably affected Miller's lookout or speed. The trial court did not commit error in not deciding the question as a matter of law.

II. Validity of the negligence and damage findings.

On appeal the universal rule is that we accept the version of the evidence which is most favorable to the verdict and if the credible evidence is sufficient to support it although not necessarily the great weight, the verdict must stand. Miller first argues the failure to maintain a crossing sign on the west side of the track was causal and the jury completely disregarded the evidence in not so finding. In developing this argument, however, Miller argues this crossing was particularly dangerous and he should have had the benefit of an instruction to the effect the railroad is under a greater duty to guard such crossings than ordinary ones. But the failure to ask for such an instruction or the court to give one sua sponte does not point to any perversity of the jury. Whether such an instruction would be proper is a question not raised on this record. The record discloses, however, sufficient credible evidence for a jury to find that the lookout and speed of the plaintiff were such that the absence of a sign as required by sec. 192.29 (5), Stats., on the west side of the crossing was not a factor in the collision.

The evidence in respect to whether there was an audible signal in the form of a whistle or horn given by the train is in conflict. The two witnesses, who were driving on the highway and approaching the crossing, heard the whistle of the train and one also heard the automatic bell ringing on the wig-wag signal at the crossing. The engineer testified the bell started to ring and the whistle to sound when the engine was about 1,200 to 1,400 feet from the crossing. The fact the plaintiff and two witnesses who were in homes near the crossing did not hear a train whistle is not determinative. The jury had the right to believe the testimony of the engineer and the two drivers on the road. Their testimony was not inherently unworthy of belief.

The jury found Miller causally negligent as to lookout, but he argues it was impossible to see the train until he was 35 to 40 feet from the track. As we read the record, Miller did not testify he could not see the train sooner but merely that he did not see the train until he was about 35 to 40 feet from the crossing. There was testimony that from a distance 200 feet west of the...