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

• Decision Date: 06 November 1918
• Citation: 169 N.W. 305,168 Wis. 101
• Court: Wisconsin Supreme Court
• Parties: PUHR v. CHICAGO & N. W. RY. CO. ET AL.

168 Wis. 101

169 N.W. 305

PUHR

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

Supreme Court of Wisconsin.

Nov. 6, 1918.

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

Action by Anna Puhr, administratrix of Frank Bauman, deceased, against the Chicago & Northwestern Railway Company and George Lee, as administrator of the estate of Frank Kucera, deceased. From an order for a judgment dismissing the action as to the Railway Company, and an order for new trial as to the remaining defendant, plaintiff appeals. Appeal dismissed.Hope Thompson, of Chicago, Ill., and Kelley & Wyseman, of Manitowoc, for appellant.

Edward M. Smart, of Milwaukee, for respondent Chicago & N. W. Ry. Co.

E. S. Schmitz and Healy & Joyce, all of Manitowoc, for respondent Lee.

KERWIN, J.

This action was brought to recover damages resulting from a collision between an automobile owned by Frank Kucera, deceased, and the defendant Chicago & Northwestern Railway Company, which occurred at a crossing at Two Rivers, in the county of Manitowoc, Wis. The deceased, Frank Kucera, and wife, deceased, Frank Bauman and wife, and Theresa, daughter of Frank Bauman, were riding in an automobile; Bauman, his wife, and daughter having been invited to ride by Frank Kucera, deceased. All were killed in the collision, except Theresa Bauman, who was severely injured.

The action was brought by the administratrix of Bauman, deceased, against the railway company and George Lee, administrator of the estate of Frank Kucera, deceased, on the ground of negligence of both the railway company and Frank Kucera. The trial resulted in a special verdict finding that the deceased, Frank Kucera, was not guilty of more than a slight want of ordinary care; that the speed of the train was 20 miles an hour, and that in running the train at that rate of speed the railway company failed to exercise ordinary care, and that the negligence of the railway company was a proximate cause of the injury and death of Frank Bauman; that the railway company's servants failed to use ordinary care to discover in time that the automobile was about to cross its track at the crossing in question, and that such failure was a proximate cause of the injury and death of said Bauman; that there was no want of ordinary care on the part of Frank Bauman, which contributed to the cause of his death; that the damages awarded were as follows: To the daughter, Theresa Bauman, $4,590; to his daughter, Anna Bauman Puhr, $1,000; and to his son, John Bauman, $500.

The court below changed the answer of the jury on the question of slight want of ordinary care, holding that the defendant Frank Kucera was guilty of more than a slight want of ordinary care, and ordered judgment dismissing the action as to the railway company, and also ordered a new trial on the ground that the damages awarded were excessive. This appeal is from both orders.

The appellant here seeks to review the order granting a new trial, as well as that dismissing the action as to the railway company, and assigns that the court erred in granting the motion of the railway company to change the jury's answer on the question of Frank Kucera's negligence, in ordering judgment in favor of the railway company dismissing the complaint, in ordering a new trial for defendant George Lee, administrator,...