151 Wis. 109 | Wis. | 1912
Tbe plaintiff, traveling at nigbt on tbe street,, drove bis borses against tbe side of a train of flat cars standing on a railroad crossing and was thereby injured. He was-riding with bis wife in a sleigh drawn by a team of borses and going west. There were several railroad tracks on this crossing and switches north and south of tbe crossing. Tbe crossing was in a depression in tbe street of three and one-half feet, in a distance of 183 feet. A flagman was kept at this crossing in tbe daytime and an electric light at nigbt. This electric light was maintained by an electric light company by contract with tbe city 'and paid for by tbe railroad company. On tbe nigbt in question tbe electric lights in tbe city of Oconto were out by unavoidable accident. An ordinance of tbe city of Oconto was introduced in evidence, tbe first section of which is as follows:
“Section 1. All railroads are hereby prohibited from obstructing tbe streets of tbe city of Oconto with their engines or cars, but tbe standing of cars or engines of a passenger train on tbe street during tbe usual and necessary stoppage of' tbe train at a station, shall not be deemed an obstruction within tbe meaning of this ordinance.”
Tbe scope and meaning of this ordinance was not discussed by counsel or explained to tbe jury. There are no exceptions, to tbe instructions given to the jury and no requests for instructions. But there was a motion to set aside tbe verdict-on tbe ground of excessive damages, which was denied and.
Tbe fact that bis present condition was caused by tbe collision with tbe car standing on tbe crossing and the extent of bis- disability rest upon tbe opinions of experts. Such opinions are not absolutely binding upon the court. Bucher v. Wis. Cent. R. Co. 139 Wis. 597, 120 N. W. 518. We are satisfied that tbe damages awarded are at least double what they ought to be on tbe evidence. Ordinarily this would result in reversing tbe judgment and naming a sum which tbe plaintiff may accept and terminate tbe litigation. Lehman v. Amsterdam C. Co. 146 Wis. 213, 131 N. W. 362; Beach, v. Bird & W. L. Co. 135 Wis. 550, 116 N. W. 245. But in tbe instant case tbe evidence tending to establish defendant’s negligence is so uncertain and insufficient that we have decided to remand tbe cause for a new trial on tbe merits. Tbe usual statute or ordinance relating to tbe obstruction of tbe highway crossings by trains fixes a time beyond which the crossing shall not be obstructed, usually five minutes. There is considerable variety of expression, of course, but tbe nature of tbe subject almost requires that a time be fixed if tbe statute or ordinance make any change in what we may call tbe common law. Under our statutes a railway company bas a right to use tbe street on which its tracks are lawfully laid for legitimate purposes, but it bas no right to leave its cars standing upon tbe street for an unnecessary and unreasonable length of time. Fay v. M., St. P. & S. S. M. R. Co. 131 Wis. 639, 111 N. W. 683; Evans v. C., St. P., M. & O. R. Co. 86 Wis. 597, 57 N. W. 354; Bussian v. M., L. S. & W. R. Co. 56 Wis. 325, 14 N. W. 452; Janesville v. M. & M. R. Co. 7 Wis.
It may have been that the jury understood from the .ordinance in question that a freight train could not stop upon a crossing at all. The proper construction of the ordinance in .question is that the obstruction therein mentioned relates to an unnecessary stop upon a highway crossing or a necessary stop prolonged for an unreasonable or unnecessary length of time. It cannot be presumed that the ordinance was intended to interfere with or prevent the ordinary usual and careful operation of railroad trains. There is no proof in the case that this stop was unnecessary or that it continued for an unreasonable time. The utmost limit of time fixed by the plaintiff’s proof is five minutes, although he does say, once or twice, “five or six minutes.” The substance of his testimony, however, is to the effect that a certain church is about a quarter of a mile east of this crossing and that he could see the crossing from the time he arrived at that church until he reached the crossing, and that no locomotive passed over it during that time. He drove his horses part of the way on a walk and part of the way on a trot, and estimates that in this way he proceeded at the rate of three miles an hour, or a quarter of a mile in five minutes. The distance of a quarter of a mile is estimated, the rate of speed is estimated, and the time is estimated. The estimate of the rate of speed is very low and conflicts with common experience. On the other hand, the members of the railroad crew testify that the stop was made for the purpose of sending a man ahead to ascertain whether a certain sidetrack upon which they intended to go was clear of cars. To ascertain this the messenger had to travel about 150 feet and return. Some of the
Nothing that is said in this opinion is to be taken as' sug
By the Court. — Judgment reversed, and the cause remanded for a new trial.