New Amsterdam Casualty Co. v. Chicago & Northwestern Railway Co. , 190 Wis. 203 ( 1926 )

Eschweiler, J.

The deceased had been familiar with this crossing for some time in daily trips with the same truck. The accident happened on a clear, quiet day, and there was no testimony showing that the attention of deceased was then attracted away from the crossing. There was testimony that as the train approached from the south the whistle was blown so as to be audible to some in the immediate neighborhood, and although a failure to sound the whistle was alleged in the complaint no question concerning it was submitted to the jury.

Several questions are presented and argued on this appeal. We deem it necessary, however, to consider but the one — whether there was more than a slight want of ordinary care proximately contributing to his death by Walter Heinrich in his approaching the crossing.

The only testimony as to the distance within which such truck could be stopped was that by the employer of the deceased and owner of the truck, who stated that at the rate of ten miles an hour it could be stopped within twenty feet.

There was dispute in the testimony as to the location on this morning of the freight car on the siding. Assuming this to be, as was claimed by plaintiff, about ten feet south of the north end of the elevator, then from the center of Seventh avenue, a little south of which center the deceased was traveling, and when fifteen feet west of the main track, that track could be observed for a distance of 235.9 feet south of the center of Seventh avenue; at 25 feet west, 125.4 feet; at 37 feet, 104;7 feet; at 50 feet, 94.9 feet; or even if, as here argued by respondent, the freight car was flush with the north end of the elevator, then at 37 feet west, 90.7 feet to the south could be seen; at 25 feet west, 111.7 feet.

The testimony of the eye-witnesses disclosed that the truck was being driven in a straight line and with no discernible slackening of speed until, as indicated by the wheel tracks, it was within about four feet from the main track, when it turned towards the north. The train struck the truck just back of the front wheels and of the driver’s cab in which Heinrich was seated, and about six feet back from the front end. The truck was carried some 204 feet to the north.

At the respective rates of speed of the truck and train as found by the jury, namely, thirteen and thirty miles per hour — and both such findings are supported by the evidence, — the train was traveling about 2.3 feet while the truck was advancing one foot. From a point at least thirty-seven feet away from the crossing, the train at its rate of speed could not have been in any event beyond the possible range of vision of one approaching as was the driver of the truck.

The situation thus presented is that of a driver of a truck, approaching a familiar railroad crossing, entering into a known zone of great danger without observing the approach of a rapidly moving passenger train with its bell ringing, and which he must have seen if he had looked in the direction from which it w7as approaching while he was driving over a space within which he evidently could have brought the truck to a stop or turned to the north or south and averted the disastrous and tragic result.

We feel that under the former and recent holdings of this court there was thus presented a situation which should have required the court below and now requires this court to say, as a matter of law, that .the-verdict of the jury finding that there was no more than a slight want of ordinary care on the part of the truck driver was wrong, and that such question of the special verdict should have been answered to the contrary and judgment granted for the defendant.

Much reliance is placed by respondent’s counsel upon the former holdings of this court in Gordon v. Ill. Cent. R. Co. 168 Wis. 244, 169 N. W. 570; Wade v. C. & N. W. R. Co. 146 Wis. 99, 130 N. W. 890, and others.

Such prior cases and this subject matter and under the particular statute, sec. 192.27, sub. (6), formerly sec. 1809, as to railroad crossing accidents, requiring a jury to determine whether any negligence on the part of the traveler on the highway was less or more than slight want of ordinary care, have been so recently, completely, and often discussed by this court that we feel it unnecessary to further elaborate upon or repeat what was said and held in the line of cases which we deem controlling on us in the disposition we are now making of this case, such as Roth v. C., M. & St. P. R. Co. 185 Wis. 580, 201 N. W. 810; Sweeo v. C. & N. W. R. Co. 183 Wis. 234, 197 N. W. 805; Van Dunk v. C. & N. W. R. Co. 188 Wis. 476, 206 N. W. 852; Rowart v. K., G. B. & W. R. Co. 175 Wis. 286, 185 N. W. 189; Bahlert v. C., M. & St. P. R. Co. 175 Wis. 481, 185 N. W. 515; Puhr v. C. & N. W. R. Co. 171 Wis. 154, 176 N. W. 767; Twist v. M., St. P. & S. S. M. R. Co. 178 Wis. 513, 190 N. W. 449.

It follows from what has been said that no recovery against the defendant can be supported under the evidence.

By the Court. — Judgment reversed.