Reinke v. Chi., M., St. P. & P. R. Co.
Decision Date | 17 February 1948 |
Citation | 252 Wis. 1,30 N.W.2d 201 |
Parties | REINKE v. CHICAGO, M., ST. P. & P. R. CO. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Walworth County; Alfred L. Drury, Judge.
Affirmed.
Action by Hattie B. Reinke, as administratrix of the estate of William A. Reinke, deceased, plaintiff and appellant, commenced August 16, 1946, to recover damages sustained because of the death of William A. Reinke. The death was caused by a collision between an automobile driven by Reinke and a train operated by the Chicago, Milwaukee, St. Paul and Pacific Railroad Company, a railroad corporation, defendant and respondent. Action was tried to the court and a jury, and a special verdict rendered. On motions after verdict the court changed the answers to subdivisions (a) and (b) of question 9 and found the deceased guilty of causal negligence as a matter of law in failing to keep a proper lookout and with respect to listening for the approach of the train, and ordered a new trial. Plaintiff appeals from the order granting a new trial, entered May 21, 1947, and defendant seeks a review.
Shortly before 1 p. m. on April 27, 1946, the deceased, William A. Reinke, accompanied by his friend, Anton A. Carlson, was driving a truck with an enclosed cab south on Fifth street, a public street in Delavan, Wisconsin, which runs in a northerly and southerly direction. Reinke and Carlson had been at the Carlson home about an hour before and had passed over this same street at that time. The Carlson home was the first home south of where the track of the defendant, Chicago, Milwaukee, St. Paul and Pacific Railroad Company, crosses Fifth street diagonally from the southwest to the northeast. There was a residence on the west side of Fifth street forty-one feet north of the center line of the track. The traveled portion of the street varies from thirty-six feet in width before reaching the right of way to fifteen feet in width as it crosses the right of way and the track. The driver of the truck, when sixty feet north of the north rail of the track, had a clear view along the track a distance of two hundred two feet west of the center of Fifth street, and when fifty feet north of the north rail of the track had a clear view to the west a distance of three hundred ninety-two feet from the center of Fifth street. As Reinke approached the crossing from the north, in his truck, a freight train consisting of one hundred five cars drawn by a four-unit Diesel engine approached from the southwest at a speed stipulated to be forty-five miles per hour. The railroad engine struck the cab of the truck, killing both occupants of the truck. Johnson & DeBaufer, of Whitewater, for appellant.
Bender, Trump & McIntyre, of Milwaukee (Rodger S. Trump, of Milwaukee, of counsel), for respondent.
The crossing in question was a public traveled grade crossing in the city of Delavan, where the speed limit of railroad trains is fifteen miles per hour. Sec. 192.29(1), Stats. The jury found the railroad company guilty of causal negligence as to speed and failure to blow the whistle, and found deceased Reinke guilty of no negligence. On the question of apportionment of negligence between the deceased and defendant, the jury found defendant railroad company guilty of seventy-five per cent of the negligence and deceased, William A. Reinke, guilty of twenty-five per cent of the negligence that caused the death. On motions after verdict the court changed the answers of the jury to the questions of negligence on the part of the deceased Reinke and found him guilty of causal negligence in failing to look and listen.
Counsel for appellant argues that the court was in error in changing the answers, and cites cases which uphold the rule that it is the duty of defendant to signal the approach of a train if in the exercise of ordinary care it is required to do so. This does not answer the question of negligence of the deceased driver. The collision occurred on a clear day about one o'clock in the afternoon with no other traffic on the street to interfere with his view. In the case of Clemons v. Chicago, St. P., M. & O. R. Co., 1909, 137 Wis. 387, 119 N.W. 102, 105, the court said:
‘Next in order is the principle that a railroad track is such an admonition of danger that he who approaches it at a highway crossing with knowledge thereof, intending to cross the same, must use his senses of sight and hearing to discover whether there is any reasonable probability of his placing himself in dangerous proximity to a moving train if he proceeds; that he is not only bound to look and listen to discover whether a train is dangerously near or not, but is bound to make the discovery of one if there be such plainly visible, or plaintiff within hearing, and to use his senses in that regard at the last opportunity before going upon the track, and that mere diversion of attention will not excuse nonperformance of these duties.’
The train involved in the collision was a heavy freight train of more than one hundred cars. Of necessity it made considerable noise, and a number of witnesses testified to this fact. In Waitkus v. Chicago & N. W. R. Co., 1931, 204 Wis. 566, 236 N.W. 531, 532,237 N.W. 259, the court said:
‘* * * Therefore, it has come to be as well settled in the jurisprudence of this country that the traveler must exercise his senses to discover the approach of a train when he attempts to cross a railroad track as that a contract requires a consideration, and probably with greater reason.’
Counsel for appellant argues the court was in error in his memorandum of opinion in comparing the speed of the train with the speed of the truck, using fifteen miles per hour as the speed of the truck. All of the testimony is that the truck was traveling slowly, and the witnesses who estimated the speed of the truck fixed it at about fifteen miles per...
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