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

• Decision Date: 12 October 1926
• Citation: 210 N.W. 361,191 Wis. 130
• Parties: RUSCZCK v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

191 Wis. 130

210 N.W. 361

RUSCZCK

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

Supreme Court of Wisconsin.

Oct. 12, 1926.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Action by Constance Rusczck, executrix of Theophil Rusczck, against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.--[By Editorial Staff.]

The plaintiff, first as widow, and subsequently also as executrix, of Theophil Rusczck, brought this action to recover damages to herself, as widow, and on behalf of the estate, for the pain and suffering of her husband arising from an injury to him on March 23, 1925, and his consequent death 44 hours afterward.

The husband was riding in an automobile driven by his brother-in-law and returning to the latter's home along Garden street in the city of Kenosha. Thirteen or fourteen tracks of defendant crossed Garden street at substantially right angles and occupied a space of about 300 feet, the greater space between any such tracks being about 32 feet. The collision occurred about 9 p. m. on a dark, clear night. The driver of the automobile had lived for some years within a block of this crossing, which is at the north edge of defendant's depot, and was familiar with its situation, and he and Rusczck had driven over it in the opposite direction shortly before. Each of these two adults had a minor son in the rear seat of the automobile. At the time in question, defendant maintained two flagmen at this particular crossing, the only one so manned in Kenosha. One such flagman was stationed at the east end of such crossing and was charged with the duty of observing the approach of trains on the two most easterly of said tracks, which two were set apart by defendant for the north and south bound through traffic, while the remaining ones were used for switching purposes and under the care of the other flagman.

As the automobile approached from the west, it came to a stop outside of such tracks because the most westerly was then occupied by a number of box cars being backed to the north. The west end flagman was on the crossing just east of this occupied track and saw the stopped automobile through openings between the box cars as they passed to the north. After the track was clear, the automobile proceeded easterly across the intervening tracks until struck by the engine of a freight train coming from the south at the second from the east of the tracks. The two boys in the rear seat, eight and nine years of age, respectively, testified, in substance, that as the automobile started across the westerly track the flagman at that end walked to the north of the crossing alongside of or immediately following the backing engine, and that as the automobile approached the easterly end of this crossing there was no flagman there or signal given of the approaching train.

By special verdict, the jury found that there was no negligence in keeping a proper lookout by the crew of the train which struck the automobile as they approached the crossing; that the defendant's flagman at the west end of the crossing negligently failed to signal the driver of the automobile as it approached the west side of the crossing, and that such negligence was a proximate cause of the injuries to and death of Rusczck; that the same flagman negligently failed to warn the driver of the automobile before he drove upon the crossing, and that such negligence was a proximate cause as aforesaid; that the deceased did not fail to exercise ordinary care, and assessed separately the damages for the conscious pain and suffering and the pecuniary injury resulting to the widow from such death.

From a judgment in favor of plaintiff upon such verdict defendant appeals.

Crownhart, J., dissenting.

John F. Baker, of Milwaukee, for appellant.

Cannon & Waldron, of Milwaukee (Simmons, Walker & Wratten, of Racine, of counsel), for respondent.

ESCHWEILER, J.

So far as the special verdict is concerned, the judgment in plaintiff's favor in each of the two causes of action must be based upon the conclusion reached by the jury and approved by the trial court that there was negligence by defendant's flagman at the west end of the crossing, in his failure both to signal and to warn the driver of the automobile of the danger from the approaching train from the south at the easterly end of the crossing, because there was an express finding not challenged by plaintiff that there was no negligence in the crew of the train striking the automobile, and no question was submitted to the jury as to any possible negligence of the flagman at the east end.

There is some contradiction and confusion in the testimony as to just what was done by the flagman at the west end, he having seen, as he testified, this train approaching from the south at the east end at the time the automobile crossed the west tracks, so that it was fairly a jury question whether what the flagman did might have reasonably been considered by the occupants of the automobile as an invitation to enter upon the tracks at the westerly end, rather than as a warning to proceed no further or to halt before reaching...