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

• Decision Date: 05 October 1949
• Citation: 255 Wis. 172,38 N.W.2d 522
• Parties: RILEY v. CHICAGO & N. W. RY. CO. et al. (two cases).
• Court: Wisconsin Supreme Court

255 Wis. 172

38 N.W.2d 522

RILEY

v.CHICAGO & N. W. RY. CO. et al. (two cases).

Supreme Court of Wisconsin.

July 12, 1949.

As Corrected Oct. 5, 1949.

Appeal from judgments of the Circuit Court for Dane County; Herman W. Sachtjen, Judge.

In the Alice R. Thompson case judgment reversed. In the William Allen Thompson case judgment affirmed.Railway crossing accident. On the 17th day of March, 1947, at about 6:50 o'clock in the morning a collision occurred between a train of the Chicago & Northwestern Railway Company, hereafter referred to as Railway Company, and a truck in which William Allen Thompson was driver and his wife Alice R. Thompson was a guest passenger. The collision occurred at the intersection of Commercial Avenue and the tracks of the Railway Company. Commercial Avenue runs in an easterly and westerly direction, is paved with concrete and is the boundary line between the city of Madison and the town of Burk. The railway tracks, of which there are three, run approximately north and south at the point in question. The collision occurred on the middle track. As a result of the collision William Allen Thompson and Alice R. Thompson were instantly killed. William C. Riley, the father of Alice R. Thompson, was appointed administrator of the estates of the deceased Alice R. Thompson and William Allen Thompson. As administrator he began two actions, one for recovery of the damages sustained by the death of Alice R. Thompson and the other for the recovery of the damages sustained by reason of the death of William Allen Thompson. The cases were brought on for trial and tried together. There was a special verdict in each case. In the Alice R. Thompson case the jury found that the Railway Company was causally negligent as to speed of train, as to failure to blow whistle, and was not negligent as to maintaining a proper lookout. That William Allen Thompson was causally negligent as to looking for approaching trains, as to management and control of his truck and was not negligent as to listening for approaching trains and was not negligent as to failure to heed the warning given by the operating wigwag signals. The jury found that Alice R. Thompson was not negligent in any respect. In response to question number 9 the jury found that William Allen Thompson was driving the truck in question without permission of A. Russell Sanders, and assessed the plaintiff's damages at $8,000 pecuniary loss, and $677.96 funeral expenses.

In the William Allen Thompson case the jury found that the Railway Company was causally negligent with respect to speed of train, as to failure to blow whistle, but was not negligent as to maintaining proper lookout. The jury found that William Allen Thompson was causally negligent as to looking for approaching trains, as to management and control of his truck and was not negligent as to listening for approaching trains or failure to heed the warning given by the operating wigwag signals. The jury apportioned the negligence 70% to the Railway Company and 30% to William Allen Thompson. The jury also found that William Allen Thompson at the time of the accident was not engaged in the business of his employer, the defendant A. Russell Sanders, assessed the damages for pecuniary loss at $12,000, funeral expenses $649.50, assessed the damages to the truck of A. Russell Sanders at $2,200, and assesed the damages to the Railway Company's train at the sum of $1,149.97. Judgment was entered upon the verdict as follows:

In the Alice R. Thompson case judgment was entered in favor of the administrator and against the Railway Company for a total of $9,015.37; judgment was also entered dismissing the cross-complaint of the Railway Company against A. Russell Sanders and his insurance carrier, with costs taxed at $101.70. Judgment was also entered against the administrator of the estate of William Allen Thompson in favor of the Railway Company for 50% of any amount paid upon the judgment against said Railway Company.

In the William Allen Thompson case judgment was rendered in favor of the defendant A. Russell Sanders for $2,200 with costs, and dismissing the Railway Company's cross-complaint against Sanders. Judgment was entered against the Railway Company dismissing its counterclaim against the plaintiff for damage to the train equipment with costs taxed at $185.38. Judgment was entered dismissing the cross-complaint of the Railway Company against A. Russell Sanders, and judgment was entered in favor of A. Russell Sanders against the Railway Company for $2,200 and costs, in all the sum of $2,350.28. Judgment was also entered that the cross-complaint of the Railway Company against the American Casualty Company be dismissed on the merits with costs taxed at $101.70. The administrator in the William Allen Thompson case appeals from that part of the judgment dismissing the plaintiff's complaint. The Railway Company appealed from that part of the judgment in the Alice R. Thompson case against it in favor of the administrator of the estate, and also from the judgment in favor of A. Russell Sanders dismissing its cross-complaint.

By stipulation of the parties the cases were combined and consolidated for the purpose of paging the record, furnishing appendix and briefs and argument, and it was further stipulated that separate judgments should be entered. The facts will be stated in the opinion, which will deal with both cases.

B. W. Huiskamp, Madison, Frank A. Ross, Madison, of counsel, for Wm. C. Riley, adm'r.

John E. Krueger, Milwaukee, for Chicago & N. W. Ry. Co.

George McD. Schlotthauer, Madison, C. G. Mathys, Madison, of counsel, for impleaded defendant American Casualty Co.

ROSENBERRY, Chief Justice.

As already stated the accident occurred on the 17th day of March 1947, at about 6:50 o'clock in the morning. William C. Riley, the father of Alice R. Thompson, deceased, and administrator of her estate, was an eye witness of the accident. The material facts to which he testified in substance are as follows:

I am fifty years old. I am also the administrator of the estate of William Allen Thompson, who was my daughter's husband, and guardian of William Allen Thompson, Jr., my grandson. My house is the third house from Commercial Avenue on the east side of Superior Street. At the time of the accident I was employed at the Celon Company about a mile from my home as night watchman. I got home a little after six that morning. William and Alice were up at that time. My property backs right up against the railroad right-of-way. I took out some rubbish which I burned in the ditch. While I was burning the rubbish I saw William and Alice as they passed by me. They came out of the house and through the gate and over the ditch. They were going to their truck which was parked about one hundred feet from which I was burning my paper. It was parked in the railroad roundhouse parking lot. The railroad parking lot was east of the railroad tracks and the truck was parked about 100 feet south of Commercial Avenue. Bill and Alice walked across the railroad right-of-way and the track single file. At that time William and Alice were living with me. The truck was parked facing the tracks, that is, facing me. Both of them got in the truck and then he got out and stood by the windshield of the car and it looked like he was wiping off the windshield. Then he got back in on the left hand side of the truck, then he backed out enough so that he could get started in the driveway. Then he started north toward Commercial Avenue. When he got on to Commercial Avenue he turned to the left and proceeded west toward the crossing. From the time that he started forward with the truck until it got to the crossing the truck did not stop at any time. I would not say the truck was proceeding over five miles an hour. It did not seem to increase or decrease its speed at any time. I mean it was going at an even speed all of that time. After Bill and Alice started backing out I walked across the tracks. When they drove out on Commercial Avenue I was on the east side of the tracks watching them. I crossed the tracks because my dog followed them over there and I went to see if I could get the dog. On the crossing the truck was struck by a Chicago and Northwestern train. Before it struck the truck I saw the train a short distance away, a couple of hundred feet, maybe a little more than that. That is when I heard the train. When I looked up and saw the train the truck was approaching the crossing, and had not quite reached the wigwag there yet; just about on...