20 N.W.2d 710 | Wis. | 1945
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *571 Action by Lisetta Bellrichard and Andrew Bellrichard by Rock County Savings Trust Company, his guardian, commenced on September 6, 1944, to recover damages for *572 personal injuries to plaintiffs, and to recover damages sustained by Lisetta Bellrichard because of the death of her infant son, Wayne. The injuries arose out of a collision between an automobile driven by plaintiff, Lisetta Bellrichard, and a train operated by defendant Railroad Company. The action was tried to the court and a jury and a special verdict rendered The jury found defendant negligent in respect of speed, exonerated defendant from negligence in respect of lookout, and the sounding of the engine bell.
Plaintiff, Lisetta Bellrichard, was found guilty of negligence in failing to keep a proper lookout and also as to management and control of her car. The former was held to be a cause of the collision, but the causal question with respect to management and control was not answered by the jury. The negligence of plaintiff, Lisetta Bellrichard, was held to constitute more than a slight want of ordinary care. Sixty per cent of the negligence involved was attributed to defendant and forty per cent to Lisetta Bellrichard. The jury found no damages by reason of personal injuries to Lisetta Bellrichard, awarded her $2,500 pecuniary damages for the death of her son, Wayne, and assessed $4,000 as the damages of Andrew Bellrichard for personal injuries, including pain and suffering. The other items of damages found need not be detailed and had to do with funeral expenses, damages to automobile, medical expenses, etc.
On motions after verdict, the trial court set aside the jury's finding that defendant's negligent speed was a cause of the collision and ordered judgment dismissing plaintiffs' complaint.
The trial court also found that assuming this to be error, it was his view that there should be a new trial for various reasons unnecessary to detail here, in view of our conclusions in respect of the question of causation.
On March 14, 1945, in accordance with its order, judgment was entered dismissing plaintiffs' complaint. Plaintiffs appeal. The material facts will be stated in the opinion. *573 The accident out of which this case arises happened in Janesville on October 26, 1943, at 11 a.m., at the intersection of Pearl street and the tracks of defendant Railroad Company. Lisetta Bellrichard, hereinafter called "plaintiff" for purposes of convenience, accompanied by her sons, Wayne and Andrew, aged five and four, respectively, was driving a sedan north on Pearl street. It was a bright, clear day and the left, front window of her automobile was open. Her eyesight and her hearing were good. Wayne was sitting in the front seat with his mother, and Andrew was riding on the back seat. The crossing was not protected, by gates or electric wigwag. North street comes into Pearl street at a point just south of the railroad crossing, but does not intersect. The tracks cross Pearl street diagonally at an angle of about forty-five degrees, running from southwest to northeast, as indicated by the panoramic view published herewith.
The train was coming from the southwest or plaintiff's left, and proceeding in a northeasterly direction. She testified that as she approached the crossing from the south, she was driving at about ten miles per hour. When she was forty feet from the tracks she looked to the left and saw and heard nothing. She looked to the right and there were no moving trains in that direction. She looked into the rear mirror to see whether there were any cars coming and none were approaching from behind. She took a view of the road ahead and saw that there were no cars ahead of her. She looked at the speedometer at that time and it showed five miles per hour. Her next view to the left was taken as the front end of her automobile came onto the tracks and she then saw the train *574 about one hundred sixty feet to the left. She stepped on the gas, the car gave a jump but failed to clear the track ahead of the train. The train hit the spare tire on the back of the automobile. The force of the blow turned the automobile and pitched it into a light pole on the northeast side of the tracks.
Plaintiff claims that the brakes of her car were in good condition; that she had been over the crossing before and realized that she was approaching a railroad crossing. Based upon a glance at the head end of the train as she came upon the tracks, she estimated the train's speed at sixty to seventy miles per hour. All of the other testimony indicates that the train was going from thirty to thirty-five miles per hour.
The testimony of the engineer was that he saw plaintiff when she was some eighty feet from the tracks and when the train was about two hundred feet from the crossing; that she slowed up as though to stop and then put on speed and attempted to cross ahead of the train. The testimony of the engineer is confirmed by that of plaintiff to the extent that she claims to have slowed down at about that time and that she ultimately put on speed to clear the crossing. There is a divergence as to when plaintiff accelerated the speed of her car.
The views available to persons on the highway at various points are not in serious dispute. At a point ninety feet south of the crossing, the engine of a train three hundred fifty feet from the crossing is partly visible. At sixty feet, the train is visible for six hundred feet down the track. At fifty feet, the visibility extends to eight hundred feet. At thirty feet, the view is one thousand seventy feet. At twenty-five feet, the view is two thousand six hundred feet. We consider that these figures are verities and indicate beyond question that had plaintiff looked at forty feet, as she claims she did, she could not have failed to see the train approaching. The jury, of course, established this by finding plaintiff guilty of negligent lookout and has accepted the engineer's story by finding *575 him free from negligence as to lookout. Hence, the fact that the train was in view and would have been discovered by adequate lookout is established by the jury in this case.
The jury also exonerated defendant as to negligence in failing to ring the bell, and it must be taken as established in spite of plaintiff's claim that she did not hear it, that the bell was rung.
The question whether the engineer sounded the whistle was not submitted to the jury, and the propriety of not submitting this will be considered later in this opinion. For the moment, however, it will be assumed that the court properly refused to submit this question. No question as to defendant's negligence in management and control was submitted to the jury and no error is predicated upon the failure so to submit. It must be assumed, therefore, either that there was no issue in this respect, or if there was, that the trial court disposed of it in accordance with sec. 270.28, Stats. We are presented initially with the question whether the negligent speed of the train was a proximate cause of the collision in view of the fact that it is the only negligence on the part of defendant found by the jury.
In dealing with this question, we consider it necessary at the outset to deal with the various contentions as to what the speed of the railroad train was. Aside from plaintiff's testimony, based upon a glance an instant before the collision, the speed of the train was put by disinterested, as well as interested persons, at from thirty to thirty-five miles per hour. This is a clear violation of sec.
"A careful review of all the evidence shows that the excessive rate of speed was sufficient to cause the collision. It quite clearly appears that had the train been running twelve miles per hour only, the streetcar would have passed the zone of danger several seconds before the engine reached the point of collision and no collision would have occurred."
The statement in the Ellis Case, supra, taken out of its context and applied literally as a universal rule, is obviously subject to the criticism that it is an application of the "but for" rule. As pointed out in Umlauft v. Chicago, M., St. P. P.R. Co.
In some cases, as for example that of Webster v. Roth,
All of the foregoing has been decided upon the hypothesis that the court properly declined to submit the question to the jury whether the whistle of the train was sounded at the crossing. Without determining the materiality of our decision in this respect, we conclude that the trial court ruled properly on *579
this point. Plaintiff asserts in her brief that she looked and listened when forty feet from the crossing and heard no bell or whistle. She claims that this is something more than negative testimony, within the rule as stated by this court inZenner v. Chicago, St. P., M. O. R. Co.
"While purely negative testimony is not enough to raise an issue of fact for the jury, testimony negative in form may, under certain circumstances, be considered to be positive in substance and sufficient to raise an issue of fact. In order to do so, however, it must appear that the witness so testifying was in a position where he could hear or see; that his attention and his senses were directed to ascertaining whether the event was about to occur, and that the event did not happen."
A careful review of plaintiff's testimony, however, indicates that she did not claim to have listened for the train at forty feet from the crossing, and her testimony that she did not then hear it is negative under the rule. In addition, it should be pointed out that plaintiff never denied that the whistle was blown. She simply testified that it was not blown until she was on the tracks and the train one hundred fifty feet away from her at which time three long blasts of the whistle were sounded. If plaintiff's testimony that the train was as close to her as one hundred fifty feet at the time when she first saw it is true, then her testimony that three long blasts of the whistle were thereafter sounded is physically impossible. It is obvious that the blasts of the whistle occurred considerably further back than her testimony would indicate and that her testimony is therefore not in conflict with that of other witnesses who testified that the whistle was properly sounded. Hence, we are forced to conclude that the trial court rightly declined to submit this question to the jury because there is no evidence to the effect that the whistle was not blown at a proper place before the crossing. *580
From the foregoing, we conclude that there is no evidence to support the jury's finding that there was causal relation between the speed at which defendant's train was operated and plaintiffs' injuries.
It now becomes necessary to deal with such errors assigned by plaintiff as bear upon the issues heretofore determined. The first deals with the refusal of the court to admit certain measurements offered by plaintiff. Plaintiff, shortly before the trial, accompanied by other persons, marked the spot where the train was when she came upon the crossing. This distance was measured and found to be one hundred fifty-nine feet. The evidence was excluded upon objection. We are of the view that the exclusion was not prejudicial error. Plaintiff testified several times as to the distance of the train from the crossing when she drove upon the tracks, and this conformed approximately to the measurements. The only claim that plaintiff could base upon the measurements would be that they somehow raised the dignity of her testimony from that of an estimate to a more precise type and one entitled to greater weight. Since, however, one point in the measured line was based upon her estimate of where the train was, when she came upon the tracks, the measurement did not accomplish this result. In any event, we are of the view that plaintiff was not prejudiced by the exclusion.
The next errors assigned may be considered together. (1) Plaintiff had been cross-examined by defendant as to certain statements made to defendant's claim adjuster in regard to the collision. On redirect examination, plaintiff sought by question to elicit other portions of the conversation and objections to these questions were sustained. (2) Plaintiff sought to elicit by question that the main track of defendant railroad, a block further up the street, was guarded by a watchman. Objections to this line of questioning were sustained. In neither case did plaintiff make an offer of proof, and we are unable upon the record to determine the materiality of the *581
testimony plaintiff desired to introduce or the prejudice that might have resulted if it was erroneously excluded. In the absence of an offer, we are not in a position to consider these assignments of error. In connection with this see Pfister v.Milwaukee Free Press Co.
It is next objected by plaintiff that the trial court erred in instructing the jury. The following instruction was given in respect of slight want of ordinary care:
"A slight want of ordinary care is an absence of that degree of care and vigilance which persons of extraordinary prudence and foresight are accustomed to use.
"In connection with the question regarding slight want of ordinary care, you are instructed that where there is a failure to look and listen within the zone where the duty exists, such failure, unless a sufficient excuse therefor is shown, constitutes more than a slight want of ordinary care."
The first paragraph of this instruction was erroneous and this is conceded by defendant. In Van Dunk v. Chicago N.W. R. Co., supra, an identical instruction was condemned by this court. However, the jury was submitted the question of lookout and found plaintiff guilty of negligent lookout. This court has several times held that failure to keep a proper lookout amounts, as a matter of law, to more than a slight want of ordinary care. Bahlert v. Chicago, M. St. P.R.Co. (1921)
It is contended that the court erred in instructing the jury in substance that railroad trains can proceed only on the railroad track, cannot turn out to pass other travelers, and that therefore they are given the right of way and "the engineer is not obliged to check his speed or stop his train every time he sees a vehicle approaching which appears to be under control. The engineer has a right to assume that travelers on a highway approaching a railroad track will look and listen, up to the last opportunity before entering upon the track, to ascertain whether a train is approaching from either direction, and that they will not go on the track into danger when it is apparent that a train is approaching, and he is entitled to continue in that assumption until the contrary becomes apparent to a person exercising ordinary care, in the position of the engineer." It is contended that this instruction conveyed the idea to the jury that the engineer was not obliged to obey the statute but could maintain an unlawful speed. We see nothing in the instruction to support this contention, and furthermore, the jury did find defendant guilty of negligent speed, and no prejudice could have resulted. The instruction is in accordance with decisions of this court in several cases. In Waitkus v. Chicago N.W. R. Co., supra
(p. 568), this court said that "As the operation of the train cannot be accommodated to the movements of the traveler, the traveler must yield to the movements of the train." In Cranev. Weber,
"Assumptions as to the speed of moving trains in cities may be indulged when they are not in sight, but cannot be relied upon by travelers who have a plain view of the coming train." See also Balistrieri v. Chicago, N. S. M. R. R.
The most valid criticism of this instruction is that in view of the question submitted it may have been unnecessary, there being no question in the case as to negligent management and control. However, the instruction states the law accurately and was not prejudicial to plaintiff.
It is next objected that the following instruction was erroneous:
"Where numerous obstructions exist to hide the view of the observer before reaching the principal point of danger, the care required of the operator of the car increases as he approaches the principal danger point which is located upon the main track. The duty to look and listen for an approaching train before attempting to cross a railroad track is absolute. The driver of a vehicle is also presumed to have seen what was in plain sight."
It is objected that this instruction erroneously places an absolute duty upon the driver approaching a railroad track to look and listen. This has been expressly held by this court in numerous cases, notably White v. Chicago N.W.R. Co.
(1899)
Objection is also made to the instruction that the driver of a vehicle is presumed to have seen what was in plain sight. No objection to this as an abstract statement of law is made, but it is said that it conveyed the idea to the jury that the train was in plain sight. The statement is not open to this implication.
It is contended that the court erred in instructing the jury that other things being equal, the positive testimony of one credible witness is entitled to greater weight than that of other witnesses who merely testified negatively to the fact that they did not see or hear the happening of the event positively *584
testified to. It is objected that this is erroneous because it selects one type of evidence, classifies it, and tells the jury to give it greater weight than other evidence. This is in accordance with the rule of this court stated in Zenner v. Chicago, St. P.,M. O. R. Co., supra; Hunter v. Sirianni Candy Co. (1939)
By the Court. — Judgment affirmed.