Puhr v. Chi. & N. W. Ry. Co.

• Decision Date: 09 March 1920
• Citation: 171 Wis. 154,176 N.W. 767
• Court: Wisconsin Supreme Court
• Parties: PUHR v. CHICAGO & N. W. RY. CO. ET AL.

171 Wis. 154

176 N.W. 767

PUHR

v.CHICAGO & N. W. RY. CO. ET AL.

Supreme Court of Wisconsin.

March 9, 1920.

Appeal from Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Action by Anna Puhr, administratrix, against the Chicago & Northwestern Railway Company and George Lee, administrator of the estate of Frank Kucera, deceased. Action dismissed as to last-named defendant, and from judgment for first-named defendant against plaintiff, plaintiff appeals. Affirmed.

Action to recover damages for death by wrongful act. On the 3d day of September, 1916, at about 4 o'clock in the afternoon, plaintiff's intestate, Frank Bauman, his wife and daughter, Theresa, were riding in an automobile, from Manitowoc to Two Rivers, owned and operated by Frank Kucera, Mrs. Kucera also constituting one of the party. Within the limits of the city of Two Rivers, and while attempting to cross the railroad track of the Chicago & Northwestern Railway Company, the automobile was struck by a passenger train, the car demolished, and all the occupants killed, except Theresa. Kucera was a resident of the city of Two Rivers, and presumably familiar with the crossing. At the point of collision the railroad track extends east and west. The highway upon which the automobile was driven runs in a northeasterly and southwesterly direction, so that the intersection of the railroad track and the highway at the point of collision forms an acute angle. The automobile was coming from the southwest. The train was coming from the east. At a point in the highway 250 feet southwest of the crossing, an unobstructed view of the track could be had for 568 feet east of the crossing, and as the automobile proceeded from that point towards the track Kucera could see eastward along the track for a still greater distance. For instance, at a point in the highway 100 feet southwesterly from the crossing an unobstructed view of the track could be had for 750 feet, and at a point in the highway 50 feet southwesterly from the crossing a view of the track could be had for 900 feet. As Kucera came within view of the track he was driving from 12 to 15 miles an hour, and from that point to the intersection slowed down to 8 or 10 miles an hour. He made no apparent effort to stop the car, but drove right on to the crossing, with both hands holding the steering wheel.

Theresa Bauman, the only survivor of the occupants of the car, gave the following version of the accident: She was riding in the back seat, and Kucera asked if there was a car coming behind; he wanted to stop. She rose from her seat to look through the rear window of the car, and just as she rose she heard her father, who was riding in the front seat with Kucera, say, “Stop,” and Kucera replied, “I can't,” and immediately, and while Theresa was standing up to secure a view through the rear window, the collision occurred. Other witnesses testified that they passed the Kucera car between Manitowoc and Two Rivers, when it was standing still at the side of the traveled track, and Mr. Kucera was on the ground, with the hood of the car up, looking at the engine. The occupants of another car testified that they also passed the Kucera car on the same highway, and that Mr. Kucera was evidently having difficulty in shifting gears, as he had hold of the shifting lever, and they heard a noise as of grating gears. The occupants of a Ford automobile testified that they drove behind the Kucera car for a considerable distance prior to reaching the place of collision, and that both cars were running from 12 to 15 miles an hour; that while the Ford car stopped before it reached the railroad track, the Kucera car slowed down to from 8 to 10 miles an hour, and ran right on to the crossing, where it was struck by the train.

This action was brought by the administratrix of the estate of Frank Bauman, deceased, against the Chicago & Northwestern Railway Company and George Lee, the administrator of the estate of Frank Kucera, deceased, to recover damages for his death. The jury returned a special verdict, in which they found negligence on the part of the railroad company, a slight want of ordinary care on the part of Frank Kucera, and no negligence on the part of plaintiff's intestate, Frank Bauman. The damages were fixed at the sum of $5,950.

The sixth and seventh questions of the special verdict were as follows:

“Q. 6. In his management and operation of the automobile at the time and place of its collision with the train, was there on the part of its owner and driver, Frank Kucera, any want of ordinary care which contributed to cause the injury and death of Frank Bauman? A. Yes.

Q. 7. If your answer to the sixth question be Yes, then answer this: Was the negligence of Frank Kucera which is found by the answer to the sixth question more than a slight want of ordinary care? A. No.”

Upon motion made after verdict the court changed the answer to the seventh question from No to Yes, and ordered judgment, dismissing the complaint against the railroad company, and ordered a new trial against the administrator for the reason that the damages were excessive. An appeal was taken by the plaintiff from this order, which appeal was dismissed by this court. 168 Wis. 101, 169 N. W. 305. After the case was remanded it was, on stipulation, dismissed as to the administrator, and judgment was rendered in favor of the railroad company and against the plaintiff. From that judgment plaintiff appealed.

Hope Thompson, of Chicago, Ill., and Kelley & Wyseman, of Manitowoc, for appellant.

R. N. Van Doren, of Milwaukee, for respondent Chicago & N. W. Ry. Co.

OWEN, J. (after stating the facts as above).

It will be observed from the statement of facts that the jury, in answer to the sixth question, found that Kucera was guilty of negligence in his management and operation of the car at the time and place of collision, and that by its answer to the seventh question it found that such negligence was not more than a slight want of ordinary care. This was material, in view of the fact...