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

• Decision Date: 12 January 1897
• Citation: 95 Wis. 23,69 N.W. 982
• Parties: WICKHAM v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

95 Wis. 23

69 N.W. 982

WICKHAM

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

Supreme Court of Wisconsin.

Jan. 12, 1897.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Horace Wickham, administrator of the estate of James M. Spencer, deceased, against the Chicago & Northwestern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action to recover for the death of the plaintiff's decedent, James M. Spencer, a boy between 9 and 10 years old. He was struck, and instantly killed, by the defendant's passenger train. It was within the city of Milwaukee, and near the defendant's passenger station of Bay View. It was also near the point where the defendant's tracks cross Potter avenue. The tracks are here unfenced. The public has been accustomed to use the defendant's roadbed for passing and repassing between Potter avenue and the first street to the north, and the Bay View station, a distance of about 800 feet. There were three tracks at this place, about 9 feet apart, with the space between smooth and convenient to pedestrians. At the time of the accident, a freight train of 30 cars and a caboose was passing to the south across Potter avenue. The crossing gates were down. The deceased was seen, at that time, standing between the rails of the most easterly track, and about 40 feet north of Potter avenue. As soon as the caboose had passed, he was seen to start and run in a direction to cross the tracks. On the westerly track he was struck and killed by the engine of a passenger train coming from the south. After the evidence on both sides was all in, the court directed a verdict for the defendant. From a judgment on that verdict the plaintiff appeals.

Elliott & Hickox, for appellant.

Winkler, Flanders, Smith, Bottum & Vilas, for respondent.

NEWMAN, J.

It is urged for the appellant that the evidence produced on his behalf was sufficient to require the submission of the case to the jury. It is claimed that the evidence sufficiently establishes the negligence of the defendant in four several particulars: (1) It failed to give the customary signals of the approach of its passenger train; (2) the employés on the train failed to keep a proper lookout; (3) the train was run at an unusual and dangerous rate of speed; and (4) the road was unfenced. It must be conceded that, if there was evidence sufficient to support a verdict for the plaintiff on either of such grounds of negligence, the case should not have been taken from the jury. The settled rule is that a verdict for the defendant should not be directed unless the evidence is practically undisputed and all one way, so that, by giving it the construction most favorable to the plaintiff which it will reasonably bear, including all reasonable inferences from it, it is insufficient to support a verdict in favor of the plaintiff. Jackson v. Town of Jacksonport, 56 Wis. 310, 14 N. W. 296;Radmann v. Railroad Co., 78 Wis. 22, 47 N. W. 97;Kruse v. Railroad Co., 82 Wis. 568, 52 N. W. 755.

1. Did the train give the customary signals of its approach? Four witnesses testified affirmatively that the usual signals were given, both by sounding the whistle and ringing the bell. They testify that they heard the signals. On the other hand, two witnesses testify that they heard no signals. They were where they could have heard, but gave the matter no attention. Would this testimony support a verdict for the plaintiff on this question? Apparently, the witnesses are of equal credibility, and had equal opportunity of hearing. In such case the rule applies: “The positive testimony of one credible witness to a fact is entitled to more weight than that of several others who testify negatively, or, at most, to collateral circumstances merely persuasive in their character.” 3 Greenl. Ev. § 375; Ralph v. Railroad Co., 32 Wis. 177;Pennoyer v. Allen, 56 Wis. 502, 14 N. W. 609;Draper v. Baker, 61 Wis. 450, 21 N. W. 527;Hinton v. Railroad Co., 65 Wis. 323, 27 N. W. 147;Joannes v. Millerd, 90 Wis. 68, 62 N. W. 916. Where the evidence to prove a fact is direct and positive and satisfactory, and the evidence to disprove it is purely negative, the positive proof must prevail. Cook v. City of Racine, 49 Wis. 243, 5 N. W. 352. The evidence that the signals were given was practically undisputed.

2. Did the employés on the train fail to keep a proper lookout for persons on the track? The engineer of the train testifies that he was keeping a lookout ahead of his train, but that he did not see the boy. His failure to see the boy may, perhaps, be explained, consistent with the fact of a proper lookout, by this consideration:...