De Rousseau v. Chi., St. P., M. & O. Ry. Co.
| Decision Date | 30 December 1949 |
| Citation | 39 N.W.2d 764,256 Wis. 19 |
| Court | Wisconsin Supreme Court |
| Parties | DE ROUSSEAU et al. v. CHICAGO, ST. P., M. & O. RY. CO. |
Gertrude DeRousseau and another sued the Chicago, St. Paul, Minneapolis & Omaha Railway Company to recover damages for alleged wrongful death of Maurice A. Beffa in crossing collision.
A judgment for $8,913.89 in favor of plaintiffs was entered by the Circuit Court for St. Croix County, Kenneth S. White, J., and the defendant appealed.
The Supreme Court, Fairchild, J., reversed the judgment on ground that language of plaintiff's counsel in his argument to jury was an improper appeal tending to arouse their passion and prejudice. It was held, however, that questions as to defendant's negligence in that train was travelling at an excessive speed in violation of statute and as to apportionment of damages were for jury.
Action commenced January 31, 1947, by Gertrude DeRousseau and Employers Mutual Liability Insurance Company against the Chicago, St. Paul, Minneapolis and Omaha Railway Company to recover damages for the alleged wrongful death of Maurice A. Beffa. Judgment for $8,913.89 in favor of the plaintiffs was entered on February 7, 1949. Defendant appeals.
This case involves a collision between a truck driven by the deceased, Maurice A. Beffa, and defendant's train No. 401 at a public grade crossing on highway 63 in the village of Baldwin, Wisconsin, on February 8, 1945, at about 8:30 p. m. Deceased was traveling north on highway 63 which runs north and south crossing defendant's tracks which run east and west at about an eighty-five degree angle. At the crossing there are three tracks: on the south is a side track, known as the house track; in the center is the east bound main line track; on the north is the west bound main line track on which train No. 401 was traveling. To the north of this track is a siding track which does not cross the highway. At the time of the accident a train was stopped on this siding.
To the east of the highway and south of of the tracks were some buildings which would obstruct the view to the east of a north bound driver. There was a warehouse 247 feet east of the crossing; an elevator alongside the house track about 282 feet east of the crossing; and a box car on the house track in front of one of the doors of the elevator.
The crossing in question is protected by automatic signals which, according to the defendant's report to the Public Service Commission which was admitted in evidence, were operating at the time of the accident. It is uncontradicted that the train whistle had been blown, the bell was ringing, and the lights were on. The speed of the train was between eighty and ninety miles an hour in violation of sec. 192.29, Stats., which provides a speed limit of twenty miles an hour for trains at public graded crossings, which are protected by automatic signals.
At the trial the only eye-witness to the accident was the engineer of train No. 401. He testified that he saw the truck when he was about 200 feet east of the crossing. It appeared to be going about twenty or twenty-five miles an hour. At that time the truck was, in the engineer's estimation, about seventy-five feet south of the house track. He thought it was slowing down and would stop, but it did not.
The court found the defendant negligent as to speed because of its statutory violation. The jury in a special verdict found this negligence of the defendant causal. They found that the deceased was not negligent in failing to come to a full stop before driving onto the crossing as required of a private motor carrier by sec. 85.92, Stats.; that he was negligent in failing to listen for approaching trains; that such negligence was causal and was more than a slight want of ordinary care. They assessed defendant's percentage of the negligence as 75% and deceased's at 25%. They found that plaintiff, Gertrude DeRousseau's damages were $9,000 for pecuniary injury and $3,000 for loss of society and companionship; the court found that the damage to defendant's equipment was $1,344.35.
On February 7, 1949, judgment was entered on the verdict for $8,913.89. Defendant appeals, urging that it is entitled to a judgment dismissing the complaint or that a new trial should be granted because of prejudicial remarks by plaintiff's attorney to the jury.
John E. Krueger, Milwaukee, for appellant.
Coe & Cameron, Rice Lake, for respondents.
On appeal the defendant contends that as a matter of law the excessive speed of the train, which was traveling eighty to ninety miles an hour, was not a cause of the accident. The jury found that such speed was causal and the trial court has upheld that finding. Ruling on motions after verdict, he said:
* * *
Defendant claims that this reasoning of the trial court is wrong. He bases his argument on the fact that the trial court assumed that, since the engineer of the train could not see the truck because of obstructions until he was 200 feet from the crossing and deceased seventy-five feet away from the south track, deceased could not have seen the train until the same time because of the same obstructions. Defendant points out that at certain distances there were different opportunities for observation: at 177 feet from the west bound main line track, the deceased could have seen 201 feet up the track; at 125 feet he could have seen 300 feet; and at seventy-five feet he could have seen 400 feet. That this argument does not take into consideration all the evidence is readily apparent. Although deceased might have been able to see 201 feet up the track when he was 177 feet away, he could not have seen the train because it was much farther away. Its engineer testified that he saw the truck when is was seventy-five feet from the track, and, at that time, the train was approximately 200 feet from the crossing. Therefore, even when deceased was 125 feet away and could see 300 feet up the track, the train, which was traveling at a speed approximately three times as great as the truck, was not in view because of the obstructions.
Defendant further contends that because the train had given warning of its approach its illegal speed could not be causal because the deceased had an absolute duty to look and listen. Keegan v. Chicago, M., St. P. & P. R. Co., 1947, 251 Wis. 7, 27 N.W.2d 739;Bellrichard v. Chicago & N. W. R. Co., 1945, 247 Wis. 569, 20 N.W.2d 710;Waitkus v. Chicago & N. W. R. Co., 1931, 204 Wis. 566, 236 N.W. 531,237 N.W. 259;Clemons v. Chicago, St. P., M. & O. R. Co., 1909, 137 Wis. 387, 119 N.W. 102. While speed standing alone cannot be the cause of a crossing accident, such speed can be the cause in combination with other circumstances. Bellrichard v. Chicago & N. W. R. Co., supra, and cases cited therein. There is evidence of the unlawful speed at which the train was traveling. It was moving about three times as fast as the deceased in his truck was traveling. There is also evidence that certain buildings obstructed the view for some distance of the track on which the train was approaching. As there is to be a new trial we will not recite the evidence or do more by way of comment than to say that, at the points of observation, a train coming at a lawful rate of speed would not interfere with or prevent an adequate calculation by the traveler on the highway of the speed of the train. In Reinke v. Chicago, M. St. P. & P. R. Co, 1947, 252 Wis. 1, 7, 30 N.W.2d 201, 204, it was said:
‘A traveller approaching a crossing can gauge the speed of a train and make observations for his own safety if the train is travelling at a reasonable rate of speed, but to require him to do so when trains are travelling at the rate of speed that many of them do at this time, especially at village and city street intersections, places an extreme burden on the traveller if we are going to follow defendant's contention that an adequate warning of the approach of a train relieves the railroad company from responsibility as to speed even though it be in violation of the law.’
Because of the speed and obstructions it is considered that a jury question existed as to the causal connection between the excessive speed of the train and the accident.
This case is to be distinguished from that of Riley v. Chicago & N. W. Ry. Co., 1948, 255 Wis. 172, 38 N.W.2d 522, in which no serious obstructions to the driver's view existed and in which the credible testimony placed the train's speed at half that of the train in this case.
Defendant's next claim is that the negligence of deceased was as great or greater than the negligence of defendant...
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