Wohlleben v. Home Mut. Cas. Co.
| Decision Date | 04 May 1954 |
| Citation | 267 Wis. 68,64 N.W.2d 244 |
| Parties | WOHLLEBEN, v. HOME MUT. CAS. CO. |
| Court | Wisconsin Supreme Court |
Action begun December 12, 1952, by Edith Wohllenben against the Home Mutual Casualty Company for damages. Judgment in favor of the plaintiff was granted November 18, 1953.
The case arises out of a collision between a truck and a railroad work train. The plaintiff was a guest in the truck of her father. The father was the driver. His insurance carrier is the defendant. The case was tried to the court and jury, and upon the trial the jury found: (1) that the driver was negligent in increasing the risk to plaintiff 'beyond which Edith Wohlleben ought reasonably to have anticipated upon entering the truck'; (a) in respect to speed and (b) in respect to lookout; (2) that the negligence so found was a substantial factor in producing the collision; (3) that plaintiff did not assume the risk; (4) that the plaintiff did not fail to exercise ordinary care with respect to her maintaining a proper lookout.
There were the usual motions after verdict by the defendant to change answers to certain questions, or, in the alternative, for a new trial. All of the defendant's motions were denied, and the motion of the plaintiff for judgment upon the verdict was granted.
Lehner, Lehner & Behling, Oconto Falls, for appellant.
Ledin & Ruth, Ashland, for respondent.
There can be no serious contention that the evidence did not warrant a finding that plaintiff was free from contributory negligence.
The facts which require holding the driver of the truck responsible because of his failure to exercise ordinary care may be summarized as follows: Plaintiff, her father, who was driving the truck, and the mother were on the seat of the truck. The father was at the wheel, plaintiff next, and the mother on the right. As they left their home, some 350 feet west of the railroad track, which ran north and south, they passed through a gate which was about 50 feet west of the railroad track. This railroad is the Soo Line railroad. The truck approached the railroad crossing. The condition of the road, although slippery, was as it had been for some time. The speed of the truck, as described by the court in its ruling on the motion for a new trial, was about ten to twelve miles per hour, as they left the farm home. There was a dip by the gate, where the truck was slowed down to a speed of about five miles per hour. It was thereafter accelerated. The speed attained after the acceleration was not definitely given by the plaintiff, but she stated that in her opinion it was 'in excess of five miles per hour.' There is evidence that as the truck came nearer to the track, the mother said that the railroad track to the south was clear. It also appears from the evidence that when the truck was half way between the gate and the railroad track, the plaintiff, who had been looking to the south, turned her head and saw the work train coming from the north. The approach of this work train...
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