90 Wis. 418 | Wis. | 1895
The important contentions made by the appellants are that the evidence shows that the plaintiff Avas guilty of contributory negligence, and that the evidence and verdict show that the defendants were not negligent. These questions may properly be considered together, and their consideration requires a brief revieAV of the evidence.
The hamlet of Spencer, Avhere the accident happened, is an unincorporated village in Marathon county, with a .population of from 500 to 600 people, and the railroad operated by the defendants runs through it in a general northerly and southerly direction. Clark street is the principal street of the village, and runs due east and Avest, crossing the railroad track about 300 feet north of the defendants’ passenger station. There are four railroad tracks crossing Clark street, about thirty feet distant from each other, and all crossing at a more or less acute angle. Beginning at the west, these tracks are called the SAvitch track, the passing track, the main track, and the station track. Erom 100 to 125 teams cross these tracks daily on Clark street, the principal travel being from 10 o’clock A. M. to 4 o’clock P. M.
The plaintiff Avas a farmer and teamster, Avho lived about tAvelve miles from Spencer, and on the day of the accident he had been engaged to drive a four-mule team attached to bobsleighs loaded with a heavy load of hardwood lumber and timber to the depot at Spencer. The team and load together were more than forty feet in length. He arrived at Spencer a little before 1 o’clock P. M., drove into Clark street, and approached the railroad crossing from the west. There were two obstructions interfering with a northward view of the railroad tracks. These obstructions Avere Bres-
The engineer of the train did not see the plaintiff’s team until the engine was about 100 or 150 feet from them, when he reversed the engine. The train was the regular southbound train, due at Spencer at 1:03 P. hi., and seems to have been on time, and was to stop at the station. Its speed between stations was about thirty-five miles an hour. Its speed at the time when the engine was reversed was variously estimated by the witnesses, some of whom placed it as high as thirty-five miles an hour, being the speed which the jury found. There was another street crossing about 250 feet north of Clark street, and there was testimony tending to show, as the jury found, that the engine whistle was blown but once on approaching Clark street. The day was cold, and the plaintiff had some muffling about his head and ears, but he. claims that it did not impair his hearing.
This statement, though incomplete, covers, we think, all the facts necessary to be stated in passing upon the two questions which we are considering.
In support of the contention that the plaintiff’s own evidence shows him to have been guilty of contributory negligence, much reliance is placed on the case of Nelson v. D., S. S. & A. R. Co. 88 Wis. 392, and it is argued that the cases are substantially alike. "We do not so regard the two cases. In the Nelson Case it appeared that the plaintiff was approaching a single railroad track, where he knew trains were to be expected at any time. He stopped for a little time in front of a building near the track which cut off his view of the track entirely, and then drove out towards the track, from twelve to fourteen feet, without looking. In that case it was said that the case was not like a case where
Nor, on the other hand, can we say that the evidence fails to justify the jury in finding that the negligent handling of the train was the cause of the collision. The jury found that but one whistle was sounded, that the bell was not rung continuously, and that the train was run at an unnecessarily dangerous rate of speed, viz., at the rate of thirty-five miles an hour. They also found that all of these acts and omissions constituted a want of ordinary care on the part of the defendants, and that they were the proximate
Some minor questions are raised by the appellants, but we do not deem it necessary to discuss them. It is sufficient to say that we have found no errors in the record warranting a reversal. The case seems to have been fairly tried, and the findings of the jury are justified by the evidence and sustain the judgment. It is said that the damages are excessive, but we cannot so hold. Upon the whole record, the judgment is right and must be affirmed.
By the Court.— Judgment affirmed.