Schmolze v. Chi., M. & St. P. Ry. Co.

• Decision Date: 10 January 1893
• Citation: 54 N.W. 106,83 Wis. 659
• Parties: SCHMOLZE v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

83 Wis. 659

54 N.W. 106

SCHMOLZE

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Jan. 10, 1893.

On rehearing. Denied.

LYON, C. J.

The judgment herein for the plaintiff was reversed because the undisputed evidence proved conclusively that he was guilty of negligence which contributed directly to the injury of which he complains. 53 N. W. Rep. 743. The plaintiff now moves for a rehearing, and alleges in support of his motion that the testimony was sufficient to send to the jury the question whether, by the exercise of reasonable care and prudence, the engineer in charge of the locomotive which ran upon and injured the plaintiff might have avoided the consequences of plaintiff's negligence. If the testimony was sufficient for that purpose, it is claimed that the jury must be presumed to have found that, had the engineer exercised proper care, the plaintiff would not have been injured, and that under the rule laid down by this court in Valin v. M. & N. Railroad Co., 51 N. W. Rep. 1084, the verdict and judgment should not be disturbed, notwithstanding the negligence of plaintiff. As this point is not discussed in the opinion reversing the judgment, it is proper, on this motion, to refer to it. The locomotive was not going at an undue rate of speed, and no statute required the engineer to sound a signal when he passed through Harshaw. He saw plaintiff approach the track with the apparent intention of crossing it. He had the right to assume that the plaintiff would cross the track, and not attempt to walk along the track between the rails. There was abundant time for him to cross before the locomotive could reach him. The engineer had the right to assume, further, that the plaintiff knew the locomotive was approaching him. Under these circumstances it was not negligence on the part of the engineer that he drove his locomotive at the rate of speed it was moving, or that he gave no danger signal until the unexpected intention of plaintiff to remain upon the track became apparent. It was then too late to avoid the accident. It is quite difficult to find enough in the testimony to send the question of the negligence of the engineer to the jury. It is more difficult, if not impossible, to find testimony which warrants submitting to the jury the question whether the exercise of reasonable care by the engineer might have avoided the consequences of plaintiff's negligence. Hence, if such a finding is essential to sustain the verdict, w...