Van Dunk v. Chi. & N. W. Ry. Co.

• Decision Date: 02 January 1926
• Citation: 188 Wis. 476,206 N.W. 852
• Court: Wisconsin Supreme Court
• Parties: VAN DUNK v. CHICAGO & N. W. RY. CO.

188 Wis. 476

206 N.W. 852

VAN DUNK

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Jan. 2, 1926.

Appeal from Circuit Court, La Crosse County; R. S. Cowie, Judge.

Action by Gertie Van Dunk against the Chicago & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.John F. Baker, of Milwaukee, for appellant.

George H. Gordon and Law & Gordon, all of La Crosse, for respondent.

JONES, J.

This action was brought by the widow of John Van Dunk to recover damages for her husband's death, which occurred when the automobile which he was driving collided with a train of the defendant company. The accident happened about 7:30 o'clock in the morning on September 17, 1924, as the deceased was crossing the single track line of the defendant company at the point where it crosses Second street, in the city of Onalaska, Wis. The deceased was driving in a southeasterly direction on Second street and, due to the fact that a street car line occupies the west portion of the highway causing all the traffic at this point to move on the east portion of the highway, was driving along the center or left center of the roadway. The street is 80 feet wide from lot line to lot line. After passing over the railroad track of the defendant company, the course of traffic passes over the street car line and continues on the west portion of the highway. The collision took place just as the deceased was crossing the railroad track and crossing over to the west side of the highway. The railroad track crosses Second street at an angle of about 120 degrees, and near the junction of the east side of the road and the northeasterly rail of the track and about 20 feet from the track is a switchman's shanty some 8 feet high and about 7 feet wide. There were trees along the side of the street, which it is claimed interfere with the view to some extent. The usual stop, look, and listen sign was near the crossing in full view.

On the morning in question the deceased, a man 48 years old, was driving a Studebaker touring car with several sacks of potatoes in the rear portion of the car. He was driving at about 12 miles an hour as he approached the railroad track, and was struck just as he was crossing over to the west side of the road. The deceased was familiar with the crossing, being accustomed to make this trip to La Crosse about once a week, but, due to the change in the hours, the signalman was not on duty as he customarily was when the deceased made this journey. The train which struck the automobile of the plaintiff was 45 minutes late and there was another train due here from the opposite direction at about this time in the morning.

The testimony of witnesses was to the effect that the deceased looked to the right, but not to the left; that the bell of the train was ringing and that the whistle had been blown previously to the accident; that one bystander waved and shouted to the deceased; that the deceased was driving at a rate of about 12 miles an hour; and that the train was traveling at from 23 to 35 miles an hour.

On the question whether a view of the tracks to the south could be had a reasonable distance from the crossing, there was a conflict in the evidence. One of the plaintiff's witnesses, the city engineer of La Crosse, testified that the view to the south was unobstructed after the plaintiff reached a point 35 to 40 feet north of the crossing and that from that point there was a view of 100 feet. Another witness testified that when within 35 feet of the crossing he could see 100 feet down the track. Another testified that one had to be within 30 to 40 feet in order to get a view down the track, and another testified that when within 18 or 20 feet one could see down the track about a block. A witness testified over objection that on one occasion she did not see the approaching train until she was close to the shanty. An engineer of the state highway commission, who took measurements, was called by the defendant, and testified that 300 feet from the place of crossing in the middle of the course of the south-bound traffic one could see a distance of 235 feet down the track to the south; that 100 feet north of the crossing one could see 420 feet down the track to the south; and that at a point 50 feet north of the crossing a distance of 900 feet down the track to the south was visible. The plaintiff contended, however, that the points from which the engineer witness for the defendant took his measurements were not in the course which the deceased took.

The jury found that the train was traveling in excess of 12 miles an hour and that this was a proximate cause of the accident; that a want of ordinary care on the part of the deceased contributed to cause the accident, but that such want of ordinary care was only slight; and that the change in the hours of the signalman was a proximate cause of the collision. Upon this verdict judgment was rendered for the plaintiff, and from that judgment the defendant appeals, contending that the deceased was guilty of more than slight want of ordinary care as a matter of law; that the speed of the train was not the proximate cause of the accident; that the decision of the trial court was so clearly based upon an erroneous conception of the law as to require a reversal of the judgment; and that the jury was improperly instructed.

No measurements were made by any witnesses in behalf of the plaintif. Numerous photographs were taken and offered in evidence for the plaintiff for the purpose of showing the situation and the obstruction to the view while looking south, but none were taken within a distance of 150 feet from the place of crossing. The area about the crossing is comparatively level and the portion of the street east of the street railway track is from 28 to 30 feet wide. There are two lines of travel on the traveled portion of the street, one north-bound and the other south-bound. Although the claim is made that the observations made by witnesses for the defendant from which their measurements were taken were not in the line of travel of the deceased, the testimony is that they were taken from the center of the south-bound traffic and the testimony of the line of travel pursued by the deceased was not very definite.

The city engineer, a witness for the plaintiff, testified that the trees varied in height from 12 to 15 feet and that the branches extended from 10 to 12 feet; that they obstructed the view behind the flagman's shanty, but not in front of it. The accident did not occur at the crossing of two streets, but at a point on Second street between H and G streets where the line of travel on Second street crossed diagonally over the railroad track at such an angle that, as the deceased approached the point of crossing, he could look almost straight down the track to see the coming train; the obstruction to the view already described being the only obstacle.

[1] The observations and measurements as to the view down the railroad track were by the civil engineer of the Wisconsin highway commission, presumably a disinterested witness. The testimony of the witnesses for the plaintiff on this subject was almost entirely based on mere estimates, and it has been frequently held by this court that such evidence must yield to that based upon actual measurement by disinterested and unimpeached witnesses. Wanta v. Milwaukee, E. R. & L. Co., 148 Wis. 295, 134 N. W. 133;Burroughs v. Milwaukee, 110 Wis. 478, 86 N. W. 159;Konkel v. Pella, 122 Wis. 143, 99 N. W. 453;Busse v. State, 129 Wis. 171, 108 N. W. 64.

An inspection of the map and photographs offered in evidence by the plaintiff's counsel tend to demonstrate that the plaintiff had the opportunity to see the approaching train in ample time to avoid the accident if he had been looking and giving attention. Four or more witnesses heard the whistle blowing and some of them were much further away from the crossing than the plaintiff. The answer of the jury that the defendant did not “fail to ring the engine bell when within 20 rods of the crossing where the collision occurred, and continuously thereafter until said crossing was reached by the train in question,” was well sustained by the evidence. The witness who tried to warn the deceased swore that he was about 45 or 50 feet from him and that he shouted and waved his hand as he saw the danger and the coming train. Other witnesses heard this shouting, one of whom at least was further from the crossing than the deceased. Other witnesses heard the rumbling of the train. One witness had stopped his car on the opposite side of the track 75 to 100 feet distant, waiting for this train to pass when the collision occurred.

The automobile of the deceased and the brakes on it were in good condition and there were no side curtains. It was under such conditions as these that the deceased drove his car upon the track without stopping or changing his speed and met his untimely death. It has seldom happened that a collision case on a railroad crossing has come to this court in which there was such a mass of undisputed testimony showing warning of approaching danger, and it would have been strange if a fair-minded jury had found that the deceased was in the use of ordinary care.

[2] But it is argued that the judgment should be...