Smith v. Chi., N. S. & M. R. R.

CourtUnited States State Supreme Court of Wisconsin
Citation180 Wis. 259,193 N.W. 64
Decision Date03 April 1923
PartiesSMITH v. CHICAGO, N. S. & M. R. R.


Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Action by Mary Smith against the Chicago, North Shore & Milwaukee Railroad. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action to recover for loss of personal property, and for injuries sustained by plaintiff, a passenger in defendant's electric train which was derailed as a result of striking an automobile which had been forced upon the track. The accident occurred in Lake Forest, Ill., at a point where the tracks and the roadway run parallel and are separated only by a shallow ditch or gutter.

About 9 o'clock in the evening an automobile proceeding south on the road collided with a truck going north and was forced partly upon the tracks just as the train approached. The complaint alleged that by the terms of a statute the company was required to fence its tracks, and alleged further:

“That all of the injuries sustained by plaintiff were due solely to the negligence and carelessness of the defendant in operating its said train at a high and negligent rate of speed within the corporate limits of the city of Lake Forest, Ill., and to the failure and negligence of the defendant in failing and neglecting to fence its said right of way along and adjacent to said Old Sheridan road, and in failing and neglecting to operate its said train at such a rate of speed and to keep said train under such control as would enable the same to be stopped in time to avoid a collision in the event that any obstruction appeared upon its said tracks adjacent to said public highway.”

The statute referred to provides in part:

“That every railroad corporation, shall, within six months after any part of its line is open for use, erect and thereafter maintain fences on both sides of its road or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad, except at the crossings of public roads and highways, and within such portion of cities and incorporated towns and villages as are or may be hereafter laid out and platted into lots and blocks,” and “when such fences or cattle guards are not kept in good repair, such railroad corporations shall be liable for all damages which may be done by the agents, engines or cars of such corporation to such cattle, horses, sheep, hogs or other stock thereon.” Section 62, c. 114, Hurd's Stats.

Defendant denied all allegations of negligence, and alleged that under the exceptions of the statute no fence was required at the place of the accident.

The motorman testified that the train was traveling from 40 to 50 miles an hour; that he saw the truck when it was about 1,200 feet distant; that he also saw the auto; that he did not slacken his speed; that the car came suddenly upon the track when he was about 200 feet distant; and that he was unable to stop in time to avoid the collision.

In a special verdict the jury found that the speed of the train was 50 miles an hour; that under the circumstances this was a negligent rate of speed; that the defendant failed to exercise the highest degree of care reasonably to be expected of human vigilance and foresight in view of the character of the conveyance and consistent with the practical operation of the business; that such failure to use that degree of care was the proximate cause of the plaintiff's injuries; and that the damages to her person and property amounted to $3,775.

Upon motion of the defendant it was ordered that:

“The answer of the jury to question 2 of the special verdict be changed from ‘Yes' to ‘No,’ and the answer of the jury to question 3 of the special verdict be changed from ‘Yes' to ‘No,’ and that the answer of the jury to question 4 of the special verdict be changed from ‘Yes' to ‘No.’

Judgment was ordered dismissing the complaint.

Thompson, Myers & Kearney, of Racine, for appellant.

Simmons, Walker & Wratten, of Racine (William A. Morrow, of Chicago, Ill., of counsel), for respondent.

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

[1] It is one of the grounds of negligence alleged that the train of defendant was running at such an excessive speed that it could not be properly controlled by the motorman. The highest rate of speed claimed was 50 miles per hour, as found by the jury. The line was straight and in the open country. The plaintiff relies on no statute or ordinance governing the rate of speed. This question has several times been before this court. In an opinion by Mr. Justice Timlin the court said:

“The highest estimate of speed is 50 miles per hour. We cannot close our eyes to the fact that in order to obtain an average speed, including slackening and stops, of 30 miles an hour, the speed at some points must reach very close to, if not quite touch, 50 miles an hour. It is common knowledge that passenger trains on a good roadbed frequently exceed this speed between stations. The ‘great mass of mankind’ which inhabits this part of the world demands such rapid transit. The competitors of the defendants freely employ it. No statute forbids it. In the absence of some peculiar circumstance or particular conditions other than a country highway crossing somewhat obscured by trees and buildings, it is not for this court or for a jury to say that such speed in the open country is illegal or negligent.” Jordan v. Osborne, 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.

[2] It is claimed by counsel for plaintiff that the motorman of the defendant was negligent in failing to see and appreciate that there might be a collision between the truck and the automobile. There was some testimony that the driver of the truck drank some wine before leaving Chicago, but no evidence that he was intoxicated or unable to properly manage the vehicle.

The driver of the auto testified that there was some wobbling of the truck as he saw it approaching, but both he and the driver of the truck testified that they anticipated no danger of a collision. The driver of the auto said:

“In coming down the road, he kind of swayed from the center over to the east side of the road. He probably crossed to the center a little. When he was over there, I couldn't say whether he went across, but he wasn't far enough across to cause any danger or make me think he was going to hit me or anything.”

The driver of the truck said:

“Nothing indicated to me that there was going to be any accident at all, not until after it all happened. Before it happened I certainly didn't anticipate any accident. As this automobile shot up on the track, practically the same instant the train hit it. It seemed instantaneous to me.”

The motorman of the train saw both the truck and the automobile approaching each other, but observed nothing which led him to expect there would be a collision. The track at the place of the accident was straight for a distance of 3,000 feet south and 2,000 feet north. The motorman saw nothing unusual in the movement of the two cars, and, when the automobile shot upon the track, he applied the emergency brake and did his utmost to stop the...

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3 cases
  • Syslack v. Nevin Grocery Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • April 3, 1923
  • Matsumoto v. Chicago & NW Ry. Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 14, 1948
    ...of Janesville, 67 Wis. 24, 29 N.W. 565; Dehmel v. Smith, supra; and Kaples v. Orth, 61 Wis. 531, 21 N.W. 633. Smith v. Chicago, N. S. & M. R. R., 180 Wis. 259, 193 N.W. 64, and Letush v. New York C. R. R. Co., 267 Ill.App. 526, are cited by defendant for the proposition that plaintiff had t......
  • Interstate Motor Lines, Inc. v. Neal
    • United States
    • Supreme Court of Colorado
    • April 7, 1947
    ...... jury to say that such speed in the open country is illegal or. negligent.' Jordan v. Osborne, 147 Wis. 623, 133. N.W. 32. See, also, Smith v. Chicago, N. S. & M. R. R., 180 Wis. 259, 193 N.W. 64. . . The. judgment is affirmed. . . BURKE,. C.J., and JACKSON, J., ......

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