Shaver v. Davis

• Decision Date: 15 November 1921
• Citation: 185 N.W. 227,175 Wis. 592
• Parties: SHAVER v. DAVIS, AGENT.
• Court: Wisconsin Supreme Court

175 Wis. 592

185 N.W. 227

SHAVER

v.DAVIS, AGENT.^a1

Supreme Court of Wisconsin.

Nov. 15, 1921.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by Harold Shaver against James Cox Davis, Agent, under Transportation Act 1920 (41 Stat. 456). Judgment for plaintiff, and defendant appeals. Affirmed.

Rosenberry, J., dissenting.

This is an appeal from a judgment of the circuit court for Fond du Lac county, in favor of the plaintiff for $4,794.77.

On February 23, 1920, shortly before noon, the plaintiff, while driving an auto truck east on Grove street in the outskirts of the city of Fond du Lac, was struck at a grade crossing by a train which was “coasting” north, down grade, with the steam shut off. The day was clear and cold; a wind was blowing from the northwest; a “Look Out for the Cars” sign was in full view on the west side of the crossing.

At all points within 130 feet on the west side there was an unobstructed view of the right of way to the south for several hundred feet. The track was a spur, or branch; there was no line of telegraph poles along the right of way, and there were no fences or cattle guards at the crossing. Neither was there a watchman nor any automatic guard or signal.

Within the hour preceding the accident the plaintiff went over this same crossing with a load of gravel. Returning he came to the bridge spanning the Fond du Lac river. He entered the bridge on low, shifted to second in the middle, then into third as he left the bridge, and approached the crossing, a few yards ahead. The engine struck the right hind wheel, the force of the impact throwing the truck several yards down the right of way, and the plaintiff was pinned under the wreckage.

There had been a snowfall the night before. During the early morning there had been a wind strong enough to drift the snow in places. There was conflicting testimony as to the depth of snow in the road in the vicinity of the crossing, the plaintiff estimating it at eight inches. Before 8:30 at least three trains had gone over the crossing in question.

The plaintiff denied knowledge of the existence of the crossing. He had lived in the city of Fond du Lac for eight years. For three years he had been a drayman. The complaint alleges that the plaintiff did not know of the crossing; that there were no advanced warning signs as required by statute; that, because of the inclosed cab of his truck, he could not see the Look Out for the Cars sign; that he did not see the track because it was covered with snow; and that he did not look for a train because he had no knowledge of the existence of the crossing. He further alleges that the train was being run at a negligent rate of speed far in excess of the statutory 12-miles per hour; that he heard no bell or whistle, and believes that no such warning was given; and that by reason solely of the alleged negligence, he had suffered the injury complained of.

The defendant took issue on all allegations of negligence.

The Look Out for the Cars sign was in full view, and if the plaintiff had looked he would have seen the train. It seems established that the whistle was blown and the bell rung at the proper places. As to the speed of the train there was conflicting evidence. The plaintiff testified that if he had looked he would have seen the train; that there was nothing to prevent his looking south to see it; that he could have looked out of the window in the cab of his truck; that he would have seen the “Look Out” sign if he had looked; that his hearing and eyesight were good; that the windshield was open; that he did not look either way; paid no attention to the surroundings, and drove straight ahead; that he did not notice whether there was a railroad sign ahead; and that he did not hear the bell or whistle and was not listening.

The testimony of the fireman and the engineer was, in substance, that the fireman saw the truck when it was about 100 feet from the crossing; that the fireman shouted to the engineer, who applied the brakes 3 or 4 feet from the point of collision; the train coming to a stop within 120 feet.

In answer to the defendant's allegation of contributory negligence, the plaintiff contends that, not knowing of the existence of the crossing, he was not negligent in failing to look for a train.

Plaintiff produced one witness who swore that in his judgment the train was going from 20 to 30 miles an hour, another 25 miles an hour, and another that on the following day the same train was going from 25 to 30 miles per hour. This last statement was made competent by the testimony of the defendant's fireman that it was being run in the same manner that day as the day before. Defendant's witnesses testified that it was being run at the rate of from 8 to 10 miles an hour. There was some other testimony given by both parties where less definite figures were given.

Some testimony was given in behalf of the defendant as to the distance at which a train going 25 or 30 miles an hour could be stopped. Plaintiff's testimony tended to show that the train stopped about 175 feet from the place of collision. There was testimony that a 700-pound wheel of the demolished truck was wedged between the pilot and the track, serving as a brake, and that the truck weighed nearly 6 tons, and was hurled a distance of about 25 feet.

In a special verdict the jury found, in substance, that the train was moving in excess of 12 miles an hour as it approached within 20 rods of the crossing; that the above want of care was the proximate cause of the injury; that the plaintiff used ordinary care in respect to keeping a lookout; and that the amount of the damage was $4,600. The usual motions were made and judgment was ordered for the plaintiff.

H. J. Killilea, of Milwaukee, and Williams & Foster, of Fond du Lac, for appellant.

Reilly & O'Brien and L. J. Fellenz, all of Fond du Lac, for respondent.

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

[1] In view of the testimony it is clear that the trial court would not have been justified in taking from the jury the question of the rate of speed of the train, nor in changing their answer that the train was moving in excess of 12 miles an hour as it approached and was within 20 rods of the crossing.

Appellant's counsel rely on Riger v. Railway Co., 156 Wis. 86, 144 N. W. 204, where in the opinion of one witness, formed from imperfect observation, the rate of speed was estimated at about 16 or 17 miles per hour, and where five witnesses testified that the rate was from 4 to 7 miles an hour, and where the train was stopped within 30 feet after the signal. We do not consider the two cases at all analogous. See Swalm v. Railway Co., 143 Wis. 442, 128 N. W. 62.

[2] A much more serious objection raised by appellant is that the testimony showed the contributory negligence of plaintiff. The substance of his testimony was that he did not look nor listen, and paid no attention to the approaching train. Without any explanation his frank admission of these facts would be proof of the baldest negligence, and, according to a long line of decisions of this court, would defeat his action.

There are numerous circumstances relied on as an explanation, and the question is whether they sufficed to present a question for the jury. Plaintiff's evidence is undisputed that he had never crossed this spur track, which was about 1,200 feet from the western limits of the city, until the day of the accident. He had passed over the main line on Military street at a point 1,780 feet farther south at least four times on other occasions, but the track in question left the main track about 37 feet north of Military street. He knew of the three lines of railways running north through Fond du Lac, and had passed over them on the forenoon of the day of the accident on his trip to the gravel pit. On this spur track, with which he said he was not familiar, there were no telegraph poles and no cattle guards or fences.

There had been a snowfall during the preceding night of three inches or more, and with a northwest wind the snow was blowing and drifting. There was the testimony of several witnesses besides the plaintiff that at the time of the accident the track was all covered with snow, and that in places off the track there were drifts 3 or 4 feet deep.

The plaintiff testified that he had much trouble managing the truck on account of the snow; that he had to raise the wind shield three or four inches in order to see to drive; that chains were on all four of the wheels, and that in order to reach a lever and shift gears in managing the machine he had to bend over.

The train was running down grade at a speed which the jury found beyond the legal rate, with the steam shut off--hence with less than the usual noise--and the wind was blowing from a direction opposite to that of the train.

Both parties introduced photographs in evidence, and both parties rely on them. Small ones were taken by defendant's agents on the afternoon of the accident, some of which showed that the rails were plainly, and others, dimly visible. Large photographs taken two days after the accident showed very clearly that the...