Wade v. Chi. & N. W. Ry. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: KERWIN
• Citation: Wade v. Chi. & N. W. Ry. Co., 146 Wis. 99, 130 N.W. 890 (Wis. 1911)
• Decision Date: 05 April 1911
• Parties: WADE v. CHICAGO & N. W. RY. CO.

146 Wis. 99

130 N.W. 890

WADE

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

Supreme Court of Wisconsin.

April 5, 1911.

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

Action by Nicholas R. Wade by George R. Wade, his guardian ad litem, against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought by plaintiff, an infant, through his guardian ad litem, to recover damages for personal injuries received while crossing the railway tracks of the defendant upon Broad street in the city of Kenosha. The issues raised by the pleadings were: (1) Whether defendant was negligent in operating its train over the highway crossing in question. (2) Whether plaintiff was guilty of contributory negligence amounting to more than a slight want of ordinary care.

Defendant's motion for directed verdict at the close of the evidence was denied. The jury returned the following verdict:

“(1) Was the plaintiff injured by being struck by defendant's freight train at the time and place in question? Answered by the Court: Yes.

(2) At what rate of speed was the defendant's freight train moving as it approached and passed over the Broad street crossing at the time plaintiff was struck? Answer: Thirty miles per hour.

(3) In approaching the Broad street crossingat the time in question was the freight train moving at an excessive rate of speed? Answer: Yes.

(4) In approaching the Broad street crossing, at the time in question, was the freight engine whistle sounded in time to give warning to travelers approaching and intending to cross at said crossing? Answer: No.

(5) If you answer the fourth question ‘No,’ then, under the circumstances proven and in the exercise of ordinary care with reference to travelers, ought the freight engine whistle have been sounded in approaching the Broad Street crossing? Answer: Yes.

(6) In approaching the Broad street crossing, at the time in question, was the freight engine bell rung continuously within 20 rods of and until said crossing was reached by the freight train in question? Answer: No.

(7) Was there a failure to exercise ordinary care by the defendant company in the manner in which it managed and conducted the freight train respecting its speed or warning of its approach as it approached and passed over the Broad street crossing, at the time in question? Answer: Yes.

(8) If you answer the seventh question ‘Yes,’ then was such failure to exercise ordinary care the proximate cause of the injuries complained of by plaintiff? Answer: Yes.

(9) Did any want of ordinary care on the part of the plaintiff proximately contribute to produce the injuries complained of? Answer: Yes.

(10) If you answer the ninth question ‘Yes,’ then was the plaintiff guilty of more than a slight want of ordinary care which proximately contributed to produce the injuries complained of? Answer: No.

(11) At what sum do you assess plaintiff's damages? Answer: $6,000.”

Motion by defendant for judgment notwithstanding the verdict to change answers of the jury to special questions in the verdict and for judgment upon the verdict as modified were denied, and judgment rendered for plaintiff upon the verdict from which this appeal was taken.

William G. Wheeler, for appellant.

Baker & Clarkson and Robert Verne Baker, for respondent.

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

The sole question upon this appeal is whether the finding of the jury that the plaintiff was not guilty of more than a slight want of ordinary care which proximately contributed to the injury is supported by the evidence. It is claimed on the part of the appellant that the undisputed evidence shows that the plaintiff was guilty of more than a slight want of ordinary care.

Broad street, in the city of Kenosha, runs east and west, is about 36 feet wide, and is crossed by three tracks of the defendant running north and south. The most easterly track is the south-bound main, the next west is the north-bound main, and the next and most westerly track of the three is known as a “switch” or “passing” track. The gauge of these several tracks is 4 feet 8 1/2 inches inside the rail. From the center of the side track to the center of the north-bound main is 14 7/10 feet; from the center of the north-bound main to the center of the south-bound main is 13 feet, making the distance from the center of the side track to the center of the south-bound main 27 7/10 feet. North of Broad street for several thousand feet the tracks of defendant are straight. On the 29th day of May, 1908, the plaintiff, then between 14 and 15 years of age, was employed as a delivery boy, and at about 9:30 a. m. on the day named made a delivery of meat at a point on Broad street 300 feet west of defendant's tracks, making the trip on a bicycle. On returning, he went east on the north side of Broad street, stopped at a point about 100 feet west of the defendant's tracks to talk with a friend, then walked eastward as far as the switch or passing track, and stopped to look. He then discovered that there was a passenger train about one block south of Broad street going north on the north-bound main track. He waited in the center of the switch track until the passenger train had passed north of Broad street. There were box cars standing on the switch track, the southerly end of which was about 20 feet north of the point where plaintiff stood on the side track. The obstructions to the view north from Broad street were the box cars on the switch track and the passenger train moving north on the north-bound main track. The box cars 20 feet north of Broad street overhung the track about 2 6/10 feet from the inside of the rail. Exhibits were offered and received in evidence showing location of tracks, box cars, and the view from the points where the evidence tended to show plaintiff was at different times before the time of injury. The passenger train going north on the north-bound main track obstructed the view north to some extent, and so did the box cars on the switch track. We have set out the verdict in the statement of facts which shows the speed of the freight and passenger trains as found by the jury, and that no whistle was blown or bell rung. There is evidence that the plaintiff, being on the west side of the tracks, walked east, holding his bicycle until he reached the west or side track, looked north, and saw no train, but saw the north-bound passenger, waited in the center of the switch track about 10 seconds until the passenger train passed Broad street; that, after the passenger train had gone by, he stepped east a step or two to the west rail of the west main or north-bound track, glanced north, saw no train approaching, got on his...