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

• Decision Date: 12 October 1926
• Court: Wisconsin Supreme Court
• Parties: SCHMIDT v. CHICAGO & N. W. RY. CO.

191 Wis. 184

210 N.W. 370

SCHMIDT

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

Supreme Court of Wisconsin.

Oct. 12, 1926.

Appeal from Circuit Court, Milwaukee County; Gustav G. Gehrz, Judge.

Action by Mildred Schmidt against the Chicago & Northwestern Railway Company. From an order granting a new trial after verdict for defendant, defendant appeals. Reversed and remanded, with directions to dismiss complaint.--[By Editorial Staff.]John F. Baker, of Milwaukee, for appellant.

Schmitz, Wild & Gross, of Milwaukee, for respondent.

OWEN, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff as the result of a collision between the automobile in which she was riding and a moving freight train. It appears that at about 1:20 a. m. December 21, 1924, the plaintiff, with two young men, all occupying the front seat of a Ford coupé, was driving along a highway leading into Cudahy. While so riding the car collided with a freight train moving across the highway along which plaintiff and her companions were proceeding, resulting in personal injuries to the plaintiff.

The case was tried before a jury. The jury found negligence on the part of the railroad company which constituted the proximate cause of the accident. The jury also found that the plaintiff was guilty of negligence contributing to the accident. Upon motion, the court set aside the verdict and granted a new trial, “in the interests of justice, and for inadequacy of damages, and because the finding convicting the plaintiff of contributory negligence is contrary to the weight of the evidence.” Defendant appeals from the order granting a new trial.

[1][2] This order was within the discretion of the court, and will not be disturbed unless there has been a clear abuse of discretion, or unless it appears that the trial court proceeded upon an erroneous view of the law. Lange v. Olson, 185 Wis. 657, 202 N. W. 361.

It is contended by defendant that there is no evidence in the case upon which the finding of negligence on the part of the railroad company can be sustained. It appears that the railroad company had voluntarily installed at this crossing an electric alarm bell and an electric wigwag to signal the approach of trains to this crossing. The jury found that the banner of the signal device failed to swing, that the bell of said signal device failed to ring, and that the light of said signal device failed to burn just prior to the time plaintiff was injured. These are...