Siegel v. Milwaukee & N. R. Co.

• Citation: 79 Wis. 404,48 N.W. 488
• Parties: SIEGEL v. MILWAUKEE & N. R. CO.
• Decision Date: 09 April 1891
• Court: United States State Supreme Court of Wisconsin

79 Wis. 404

48 N.W. 488

SIEGEL

v.MILWAUKEE & N. R. CO.

Supreme Court of Wisconsin.

April 9, 1891.

Appeal from circuit court, Brown county.

Wigman & Martin, for appellant.

Alfred H. Bright, for respondent.

COLE, C. J.

We think the trial court erred in taking this case from the jury and directing a verdict for the defendant. The questions as to the contributory negligence of the plaintiff, as well as that of the negligence of the defendant, were questions of fact for the jury, and not for the court, to determine. It is admitted that the train was running at an unlawful rate of speed within the limits of the city. Whether there was proper warning given, by blowing the whistle or by the ringing of the bell, as the train approached the highway crossing, was a matter in dispute. That crossing, at the time, was dangerous and difficult for a loaded team to pass over readily, and the deep pitch-hole in the highway where it crossed the railroad track was doubtless caused by the railroad company throwing the snow from its track out on to the highway and leaving it there, thus accumulating the snow at that place, which formed the pitch-hole of which the witnesses speak. This rendered the crossing for the loaded team difficult and more dangerous than it would have been had the snow which was thrown from the railroad track been kept out of the highway. The road-bed of the track was somewhat be low the level of the highway at that point and this tended also to increase the steepness of the pitch-hole in the highway. The plaintiff approached the crossing where the collision occurred from the west, with his team and sleigh loaded with a cord and a quarter of wood, going to Green Bay. The highway ran nearly east and west. The railroad track crossed the highway at an acute angle from the north-west to the south-east. There was a slight ascent from the railroad track west on the highway. The train in question was coming from the north-west, partially behind the plaintiff, as he was driving east. It was a clear but very cold winter morning, and the plaintiff had his face and ears wrapped up to keep them from freezing, and this must have interfered with his hearing, and besides the wind was blowing in the direction of the coming train. The plaintiff says, in substance, that as he came to the hill west of the crossing he stopped and looked for the train to the left, and could neither see nor hear it. He then drove on down the hill, on a walk, until he heard the whistle blow. His horses then were about a half rod from the track, and he tried to stop them, but could not. Common experience teaches that it would be almost impossible to stop a team at once which was going down, even a slight, declivity, with a heavily loaded sleigh pressing on them. The sleigh was struck by the locomotive, and the plaintiff and team were injured as alleged. Now, it is insisted that the court should say, as a matter of law, that the plaintiff was negligent in placing him self and team in this dangerous position. It is said he was perfectly familiar with the...