Worsley v. Johnson

• Decision Date: 10 July 1920
• Citation: 178 N.W. 457,172 Wis. 325
• Parties: WORSLEY v. JOHNSON.
• Court: Wisconsin Supreme Court

172 Wis. 325

178 N.W. 457

WORSLEY

v.JOHNSON.

Supreme Court of Wisconsin.

July 3, 1920.

Dissenting Opinion, July 10, 1920.

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

Action by Mary Worsley against W. O. Johnson, as receiver for the Chicago & Milwaukee Electric Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Eschweiler, J., dissenting.

Plaintiff brought this action to recover damages for the death of her husband, Franklin W. Worsley. Decedent was killed at about 7 o'clock in the evening of September 19, 1913, at a point on the outskirts of the city of Racine, where a public highway known as Asylum avenue crosses the right of way of the defendant company. At the point where the accident occurred the railway tracks run north and south, or very nearly so, while Asylum avenue runs in a northeasterly and southwesterly direction, crossing the tracks at an angle of approximately 30 degrees. The crossing in question is located at the south city limits of Racine; the crossing being partly within and partly without the city. Deceased had been to town with a load of oats, and was on his way home, traveling south on Asylum avenue, when the vehicle in which he was driving was struck by a north-bound limited car of defendant company, and he was killed.

The complaint alleges that the defendant is a railroad corporation; that Asylum avenue is one of the principal thoroughfares leading into the city of Racine, much frequented by travelers, and that defendant's electric cars cross it at frequent intervals during the day and night; that the car which collided with the wagon of the deceased was being operated at a high and dangerous rate of speed, about 50 miles per hour; that defendant was also guilty of negligence in operating its road and running its cars over this crossing without having any gates or flagman there, or any proper electric bells or other devices installed as required by the statutes of the state. Plaintiff further asserts that deceased was exercising due care at the time of the accident. Damages are claimed in the sum of $10,000.

The defendant admits that Asylum avenue is an important highway, but denies all negligence charged against it, and alleges contributory negligence on the part of the decedent.

The case was tried before the court and a jury. A special verdict was returned by the jury, to the effect that there was a want of ordinary care on the part of the defendant in the operation of its car at the time and place in question; that such want of ordinary care was the proximate cause of the death of plaintiff's husband; that no want of ordinary care on the part of the deceased proximately contributed to cause his death; that plaintiff's damages were $4,000.

Judgment was entered in accordance with the verdict, from which judgment defendant appeals.Simmons & Walker, of Racine, and Edgar L. Wood, of Milwaukee, for appellant.

Storms, Foley & Beck, of Racine, for respondent.

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

The principal controversy presented on this appeal pertains to the question of decedent's contributory negligence. It is stated in appellant's brief:

“It is conceded that, upon the issue of defendant's negligence, the state of the evidence was such as to make the question one for the jury.”

An examination of the evidence shows that this question was clearly one for determination by the jury. It is, however, strenuously urged that the undisputed facts of the case convict the defendant of contributory negligence, and that the jury's finding that decedent was free from negligence proximately contributing to the injury should have been set aside by the court. The rule declared in Tesch v. Mil. Elec. Ry. & Light Co., 108 Wis. 593, 84 N. W. 823, 53 L. R. A. 618, is invoked as controlling in this case. It is there said, respecting the duties of persons approaching railroad crossings:

“The rule here is that the duty to see those dangers that are in plain sight, and hear those that are plainly within hearing, by paying proper attention thereto, is just as absolute as is the duty to look and listen for them, and that a jury cannot be permitted to say that a person, called upon to perform that duty, did not see or hear such dangers, and base a verdict thereon.”

There is a conflict in the evidence as to whether or not the usual and customary crossing signals, namely, the sounding of the whistle and the ringing of the crossing bell, were given, and whether the crossing lights near the track were in operation; there is also a conflict in the evidence as to whether or not the motorman applied the brake to slack the speed of the car after the team was in his view on the crossing, and whether or not the car was approaching the crossing at a high and dangerous rate of speed. These issues of fact, upon the evidence adduced, were proper inquiries for determination by the jury, and on appeal it must be assumed that the jury resolved them most favorably to plaintiff's claims. In this view the case presents the following conditions: The decedent approached the crossing from the northeasterly direction at about 7 o'clock in the evening of September 18 (a clear evening); he was riding on a lumber wagon, sitting on a seat elevated on a double box; the crossing lights were not lit; no warning signals were given of the approaching car, which was going at a speed of about 50 miles per hour, with a headlight that cast a light about 1,000 feet forward on the track; the team was traveling at the rate of about 4 miles per hour. It appears that the ground in the vicinity of the crossing is practically level and open; 160 feet from the Asylum avenue crossing is defendant's station for boarding and alighting from trains; it is located 9 feet from the easterly rail of the track on which the car in question was approaching from the south; the station building is 8 feet in width and 12 feet long, north and south; the trolley poles are 6 feet to the east from the...