De Rousseau v. Chicago, St. P., M. & O. Ry. Co.

• Decision Date: 15 November 1949
• Citation: 39 N.W.2d 764,256 Wis. 19
• Parties: DE ROUSSEAU et al. v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: Wisconsin Supreme Court

Page 764

39 N.W.2d 764

256 Wis. 19

DE ROUSSEAU et al. v. CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Wisconsin.

Nov. 15, 1949.

Rehearing Denied Dec. 30, 1949.

John E. Krueger, Milwaukee, for appellant.

Coe & Cameron, Rice Lake, for respondents.

FAIRCHILD, Justice.

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:

'* * * The engineer testified that when he was approaching 200 feet east of the crossing he saw the lights of the truck approaching from the south along the highway. He fixed the distance of the truck from the south track at 75 feet when he first observed it, and its speed at 20 to 25 miles per hour.

* * *

* * *

'Is this sufficient distance within which to permit the deceased to judge the speed of the train and make a timely and adequate appraisal of the situation? At 20 miles per hour, it would be, but at 80 to 85 miles per hour, it is a proper question for the jury as to whether or not the speed was a cause of the collision.'

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. The jury found deceased guilty of more than a slight want of ordinary care. Certainly deceased was guilty of negligence. On this state of facts the question of proportional contribution was a close one and therefore within the competency of the jury to determine. It is considered that under the evidence in the record it may not be held as a matter of law which was the greater contributor. The situation leaves to the jury's determination after a fair trial the proper proportions of negligence to be assessed against each.

However, a serious and controlling question arises because the apportionment of negligence by the jury should have been arrived at from a consideration of the evidence free from passion and prejudice caused by improper argument of counsel for plaintiff.

In his statement to the jury at the close of the testimony, counsel for plaintiff indulged in remarks, which are within the rule that an improper appeal to prejudice because of the wealth of a party or because it is a corporation or a corporation of a particular class is a sufficient ground for a new trial. 39 Am.Jur. 74 et seq.

All that was said is not preserved, but from the statements, objections, and rulings by the court it sufficiently appears that counsel made some reference to the fact that the crew of the train on the siding next to the west bound track were not among the witnesses. It does appear that the only eye witness to the collision who testified was the engineer running train No. 401. The effect of that and other statements will appear from the following brief recital quoted from the record.

'Mr. Cameron * * * sums up the case to the jury.

'Mr. Doar: I object to counsel's inquiring what happened to the crew of '501'. There isn't any evidence in the case that they knew anything about it at all.

'The Court: They jury is instructed at this time that the case is to be decided solely on the evidence as they recall it and that statements of counsel which they find in contradiction with the evidence are to be disregarded.

'Mr. Cameron: I think a poor man with a poor lawyer is entitled to the same kind of justice as the man that has got the money or the ability to hire a good lawyer. I don't think the lawyers have anything to do with it.

'Mr. Doar: We object to that statement.

'The Court: The jury are instructed that the respective counsel...