Urbanek v. The Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 24 May 1879
• Citation: 1 N.W. 464,47 Wis. 59
• Parties: URBANEK v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY
• Court: Wisconsin Supreme Court

1 N.W. 464

47 Wis. 59

URBANEK v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY

Supreme Court of Wisconsin

May 24, 1879

APPEAL from the Circuit Court for La Crosse County.

Action for injuries to the plaintiff's person and to his horses and wagon, from a train of cars on defendant's road. At the time of the accident, plaintiff was driving his team across said road upon a public highway, and the complaint alleges that the accident was caused by defendant's failure to give a reasonable and proper signal of the approach of the train.

It appeared from the evidence at the trial, that the highway in question is crossed by the Chicago & Northwestern Railway at a point about 341 feet south of defendant's crossing; and that plaintiff, driving northward, had crossed the track of the former road a few moments before the accident. It also appears that defendant's train was approaching from the west, and that its road crosses another highway at a point named Wolf's crossing, a half mile west of that at which the accident occurred.

There was a special verdict consisting of answers to eighteen interrogatories. These, with the answers as first given, were as follows:

"1. Q. If plaintiff had used his eyes, could he, at any place on the highway, have seen the train as it approached the crossing? A. There is a point on the highway where the train could be seen, if the relative positions of plaintiff and train occurred at those points at the same time.

"2. Q. Did the plaintiff listen for the train? If so, where was he when he so listened? A. He did listen, as he approached the crossing.

"3. Q. Was there any place on the highway near the crossing of the C. & N.W. Railway, or between that crossing and the one where plaintiff was injured, from which defendant's train could have been seen by the plaintiff coming on their track between the curve west of Wolf's and the crossing where the injury happened? A. There was a point near the C. & N.W Railway, from which plaintiff might have seen defendant's cars, provided plaintiff was at said point when defendant's cars occupied a certain position east of Wolf's crossing.

"4. Q. If you answer "yes," where was it? A. Where the proper position was occupied by plaintiff and defendant's cars, as in the preceding answer.

"5. Q. Did the engine whistle at or near Wolf's crossing? If "yes," where, east or west of the crossing? A. Yes west of Wolf's crossing.

"6. Q. If it did so whistle, could the plaintiff have heard it had he been listening and paying attention? A. Plaintiff did not hear it.

"7. Q. If plaintiff had stopped his team at any point between the crossing of the C. & N.W. Railway and that of the defendant and had listened, could he have heard the train coming, and avoided the accident? A. He might or might not until too late to get out of the way, in case of such delay between the two roads.

"8. Q. Which came to the crossing first, the plaintiff or the defendant's engine? A. Nearly at the same time.

"9. Q. Did the plaintiff collide with the defendant's engine? A. No, but with the cars.

"10. Q. Did the defendant's engine collide with the plaintiff? A. No.

"11. Q. Did the defendant's train give a signal by whistling as it approached the crossing on which plaintiff was injured? A. No.

"12. Q. What was the weather on the day when the accident happened? A. Fair, with light wind.

"13. Q. For how long a distance west of this crossing did defendant's road run in a straight line? A. Nearly half a mile.

"14. Q. Did plaintiff know that the crossing was dangerous? A. Yes.

"15. Q. If plaintiff had used his ears, could he at any place on the highway have heard the train as it approached the crossing? A. No.

"16. Q. Did plaintiff exercise all necessary care and diligence in approaching the crossing? If you say "yes," explain what diligence and care he used. A. Yes, by listening and looking and careful driving.

"17. Q. Was defendant negligent in approaching the crossing? A. No.

"18. Q. If you say "yes," in what did such negligence consist? [No answer.]"

The jury also found for the plaintiff generally, and assessed his damages at $ 2,745.

Plaintiff's counsel asked that the jury might be sent out to reconsider their answer to the 17th and 18th questions, on the ground that they had evidently misunderstood them; and the foreman stated that the jury understood the questions as referring to negligence on the plaintiff's part. The jury were accordingly permitted to retire and reconsider their verdict and on their return answered the 17th question in the affirmative, and the 18th as follows: "By not whistling for the crossing before reaching it." On a further suggestion by plaintiff that the jury had misunderstood the 6th question, they were again sent out, against defendant's objection, and returned with the following answer to that question: "He might or might not have heard it." The verdict, amended in the particulars above stated, was accepted by the court against defendant's objection. Afterwards, during the same term, defendant moved for a new trial on the following grounds: That the verdict was contrary to the law and the evidence; that the first answer to the 6th question was equivocal, that the court erred in sending the jury out to make a new answer, and that the final answer was indefinite and equivocal; that the answer to the 7th question was indirect, equivocal and evasive; that the court erred in sending the jury out to reconsider their answers to the 17th and 18th questions; that the damages were excessive; and that the court erred in giving certain instructions, and in refusing those asked by the defendant. The motion for a new trial was denied, and judgment rendered for the plaintiff for the amount of damages assessed by the jury; from which the defendant appealed.

Judgment affirmed.

For the appellant, there was a brief by Melbert B. Cary, and oral argument by J. C. Gregory. They contended, 1. That the answers to the 6th, 7th and 8th questions were evasive, and that this was ground for reversal. Davis v Farmington, 42 Wis., 425; Carroll v. Bohan, 43 id., 218. 2. That the answers affirming that plaintiff was in the exercise of proper care and diligence, were inconsistent with those made to the 9th and 10th questions, which find that he collided, not with the engine or tender, but with one of the cars. It is a sheer impossibility for a man, under the circumstances, to drive thus against the middle of a train, while in the exercise of ordinary care. And the answers to the 9th and 10th questions, being simply statements of an undisputed fact, touching one of the circumstances of the collision, must be accepted as true rather than the other answers, which are general conclusions based upon a great conflict of testimony and opinion. Bach v. Parmely, 35 Wis., 238; Lemke v. Railway Co., 39 id., 449; Haas v. Railway Co., 41 id., 44. 3. That the general verdict, and several of the answers of the special verdict, were contrary to the evidence. The jury, for example, found that defendant's negligence consisted in not whistling for the crossing before reaching it. All the testimony for the plaintiff upon that issue was purely negative, and there was abundant testimony both of defendant's employees (who were the persons most likely to know the fact), and of other and disinterested witnesses, showing that the whistle was blown for that crossing. The rule as to negative and affirmative evidence is well settled. C. & A. Railroad Co. v. Gretzner, 46 Ill., 75; Culhane v. Railroad Co., 60 N. Y., 133. 4. That, from the facts and circumstances in evidence, the court should have said, as a matter of law, that plaintiff could not have been in the exercise of ordinary care at the time of the accident. ...