Pargeter v. Chicago & N. W. Ry. Co.
| Decision Date | 02 June 1953 |
| Parties | PARGETER, v. CHICAGO & N. W. RY. CO. |
| Court | Wisconsin Supreme Court |
This action involves a collision between an automobile of the plaintiff and one of the trains of the defendant.
The collision occurred in the city of Madison on December 13, 1950 at approximately 6:30 P. M. Commercial Avenue upon which plaintiff was travelling in an automobile runs in a generally easterly and westerly direction and crosses four sets of tracks of the defendant which run in a generally northerly and southerly direction. The plaintiff was travelling east and the train backing north. As the plaintiff approached the intersection the defendant's automatic signals directing motorists to stop were operating. A flagman was stationed near the northeast corner of the intersection waving a lantern. The jury found that the action of the flagman was an invitation to the plaintiff to enter the crossing.
The court found the plaintiff guilty of negligence as a matter of law in failing to stop before entering the crossing and the jury found him negligent as to lookout, speed and control. The jury also found that each of the acts of negligence on the part of each of the parties was a cause of the collision and apportioned 15% of the causal negligence to the railroad company and 85% thereof to plaintiff. On June 13, 1952 judgment dismissing the complaint was entered. Plaintiff appeals.
Hugh F. Oldenburg, Madison, Thomas H. Lucas, Madison, of counsel, for appellant.
E. H. Borgelt, Edmund W. Powell and W. J. Roper, Milwaukee, for respondent.
Our conclusion that the court erred in finding as a matter of law that plaintiff was guilty of negligence in failing to stop before entering the crossing makes it unnecessary to recite more than we have of the facts.
Section 85.92(1), Stats., provides as follows:
Defendant contends that, regardless of the fact that a motorist may be invited by one of the railroad company's employees to proceed, the statute places an absolute duty upon him to stop and investigate before he proceeds.
The rule stated in the statute resembles that which has been generally referred to as the 'Pennsylvania rule'--that a traveller about to cross a railroad track on the highway must stop, as well as look and listen, and if he fails to do so he is guilty of negligence as a matter of law barring recovery if he comes in contact with a moving train.
Our statute which requires that the traveller stop only when a peace officer, a railroad employee or a warning device signals to stop imposes no greater duty upon him than does the Pennsylvania rule which requires him to stop under all circumstances.
The Pennsylvania court has relaxed its basic rule, however, and...
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