Shaffer v. Minneapolis, St. P. & S. S. M. Ry. Co.

Citation145 N.W. 1086,156 Wis. 485
CourtWisconsin Supreme Court
Decision Date17 March 1914


Appeal from Circuit Court, Chippewa County; James Wickam, Judge.

Action by Estella Shaffer against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company and others. Judgment for plaintiff, and defendant company appeals. Reversed and remanded, with directions.

The plaintiff brought this action against the appellant and W. C. Smith and John Lockins (Lokken) for personal injuries. On August 13, 1912, she was in her house, which was about 147 feet southwest of a highway grade crossing of the appellant railway. By reason of a collision at said crossing between a threshing traction engine on the highway and a train of the appellant on its track, caused, it is charged, by the joint negligence of both, a piece of iron was hurled across the intervening space, through the window of plaintiff's house, and struck her, causing the injuries complained of. The defendants answered separately, each denying negligence. The jury returned a special verdict containing 17 questions and answers: (1) The defendant failed to exercise ordinary care in running the train at a speed of 57 miles per hour when approaching the crossing; (2) this was a proximate cause of plaintiff's injury; (3) the defendant failed to blow the whistle 80 rods east of the crossing; (4) this was a proximate cause of plaintiff's injury; (5) defendant failed to ring the engine bell continuously from the whistling post to the crossing; (6) this was a proximate cause of plaintiff's injury; (7) the defendant in approaching the crossing failed to keep a proper lookout; (8) this was lack of ordinary care; (9) this was a proximate cause of plaintiff's injury; (10) the defendant could have stopped the train in time to avoid the collision after the traction engine should have been first seen from the cab of the engine; (11) in failing to stop the train in time the defendant did not exercise ordinary care; (12) this was the proximate cause of plaintiff's injury; (13) defendants Smith and Lokken failed to look or listen for an approaching train before going onto the railway track at the crossing; (14) this was the proximate cause of plaintiff's injury; (15) defendants Smith and Lokken failed to exercise ordinary care in attempting to cross the railway track with their threshing outfit at the time and in the manner they so attempted; (16) this was the proximate cause of plaintiff's injury; (17) plaintiff was damaged in the sum of $3,300. On motion the court struck out, for want of evidence to support it, the affirmative answer to question 3, and substituted in lieu thereof the answer, “No,” the affirmative answer to question 5, and substituted in lieu thereof the answer, “No,” and the affirmative answers to questions 4 and 6, and gave judgment against both defendants for the damages mentioned.W. A. Hayes, of Milwaukee, and J. E. Pannier, of Chippewa Falls, (John L. Erdall, of Minneapolis, Minn., of counsel), for appellant.

D. Buchanan, Jr., of Chippewa Falls, V. W. James, of Eau Claire, and Thomas D. Schall, of Minneapolis, Minn., for respondent.

Frawley & Frawley, of Eau Claire, for defendants Smith and another.

TIMLIN, J. (after stating the facts as above).

[1] The consequence of the collision complained of is unusual but not remote. It was within the range of reasonable anticipation that fragments might fly, and, flying, might strike some person or object, and the fact that this particular fragment flew a long distance and entered a house before striking the plaintiff would not bring the case within the rule of Hasbrouck v. Armour, 139 Wis. 357, 121 N. W. 157, 23 L. R. A. (N. S.) 876. The highway and the railroad run nearly east and west and are nearly parallel for a considerable distance easterly and westerly of the crossing in question. Coming upon the highway from the east and along the south side of the railroad right of way, we reach a place where the highway makes a turn to the north, crosses the railroad tracks diagonally, then turns west and continues west on the north side of the right of way and nearly parallel therewith. The roadbed of the railroad at the crossing is three or four feet higher than the level of the highway, and the wagon tracks slope up to the rails for several feet. The crossing is furnished with a plank outside and inside each rail lying parallel with the rails. For 318 feet east from the crossing the railroad track is straight. From that point east 944 feet the track is slightly curved. There is what the railroad engineers call a one-degree curve. This indicates the curve of a segment of the circumference of a circle of which circle a chord of 100 feet in length will represent one degree, or, in other words, a circle of about 2.2 miles diameter. Fifty-eight feet further on, and 1,320 feet or 80 rods from the crossing, is the whistling post. There is nothing to conceal an approaching train from the eastward view of one on the highway at any point within three or four rods of the rail. The colliding bodies were the railroad company's high-speed limited passenger train en route from Chicago to Minneapolis and the threshing traction engine and boiler of the defendants Smith and Lokken; the time was about 12:30 p. m. on August 13, 1912, the day fair, the wind from the northwest, with a velocity of about 16 miles per hour. The track is straight for a mile or more eastward of the whistling post and westward of the crossing in question.

Counsel for appellant contends there was no evidence to support the jury findings 1, 7, and 11. In addition to controverting this claim respondent's counsel contends that the trial court erred in changing the answers of the jury to questions 3 and 5, and seeks to support the judgment also on her exceptions to such ruling.

[2] First. With reference to jury finding 1, it appears without controversy that the train in question was what is known as a limited passenger, carrying seven coaches. It leaves Chicago at 2:45 a. m., runs to Minneapolis,and arrives at the latter city, a distance of 465 miles, at 4:40 p. m. There are about 65 stops on this trip and the average stop is 3 to 5 minutes. The train is drawn by three different engines, the first being from Chicago to Fond du Lac, the second from there to Chippewa Falls, the third from there to Minneapolis. It takes half an hour to get out to the city limits of Chicago, and about half an hour to go the 10 miles from St. Paul to Minneapolis. Three hundred and sixty-eight miles of this trip are through the state of Wisconsin, and in this part of its route there are 362 grade crossings without gates, flagmen, or bells, and somewhat similar to the crossing in question. About 60 miles of this distance is through incorporated cities and villages, where a low maximum speed is prescribed by statute. The crossing in question is between Cadott and Chippewa Falls, which stations are 12 3/10 miles apart, and, allowing for stops and slowing up, the train had 14 minutes in which to make that distance. It must be apparent that to make the schedule time between Chicago and Minneapolis under the circumstances above detailed the train must reach a speed of 60 miles an hour or thereabouts on some parts of the route. During a run of 14 hours a locomotive cannot be always kept at its fullspeed efficiency even between crossings and outside of cities and villages, and an absolutely uniform rate of speed even in the open country is not always possible. In the 368 miles of the trip through Wisconsin the train passes over 362 grade crossings, so that the mere fact that the train is approaching a crossing cannot require a slackening of this necessary speed, because the train is practically always approaching a crossing. The curve described between the whistling post and the crossing in question, considering the absence of obstruction to the view of an approaching train, is not alone enough to call for precautions greater than those required by statute law....

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11 cases
  • Boone v. North Carolina R. Co.
    • United States
    • North Carolina Supreme Court
    • April 28, 1954
    ...who was there ploughing; that the railroad was not negligent, and not liable for the injury it caused. In Shaffer v. Minneapolis, St. P. & S. S. M. Ry. Co., 156 Wis. 4,5, 145 N.W. 1086, plaintiff was injured in her house 147 feet from a railroad crossing, by a piece of iron being hurled thr......
  • Smith v. Chi., N. S. & M. R. R.
    • United States
    • Wisconsin Supreme Court
    • April 3, 1923
    ...147 Wis. 623, 624, 625, 133 N. W. 32;Sutton v. Chicago, St. P., M. & O. R. Co., 98 Wis. 157, 73 N. W. 993;Shaffer v. Minneapolis, St. P. & S. S. M. R. Co., 156 Wis. 485, 145 N. W. 1086. We must hold that the finding of the jury that this was a negligent rate of speed was properly set aside.......
  • Kalashian v. Hines
    • United States
    • Wisconsin Supreme Court
    • May 4, 1920
    ...also could not be considered of itself sufficient to warrant a finding of actionable negligence. Shaffer v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 156 Wis. 485, 495, 145 N. W. 1086. The situation here, however, presents one where such switch engines are constantly moving up and d......
  • McMillan v. Chi., M. & St. P. Ry. Co.
    • United States
    • Wisconsin Supreme Court
    • January 9, 1923
    ...St. Paul, M. & M. Ry. Co., 98 Wis. 157, 73 N. W. 993;Jordan v. Osborne, 147 Wis. 623, 133 N. W. 32;Shaffer v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 156 Wis. 485, 145 N. W. 1086;Linden v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 156 Wis. 527, 143 N. W. 167;Johnson v. Ætn......
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