| Wis. | Jan 16, 1945
Action begun May 5, 1941, by Florence Holzschuh, as administratrix of the estate of DeLyle Holzschuh, against defendants for damages for the death of DeLyle Holzschuh as a result of a collision between an auto driven by said Holzschuh and a train of the defendants. Defendants moved for a summary judgment. Motion denied. Defendants appeal.
The accident occurred at an open railway crossing in Rhinelander. The automobile which Holzschuh was driving was approaching from the north and the defendants' train from the east.
The following facts appear from the affidavits submitted: The crossing was protected by two cross-buck signs and an electric wigwag signal which was in operation at the time of the collision. When the locomotive reached a point about three thousand feet east of the crossing, the engineer turned on the bell ringer and at a point about one thousand five hundred feet east of the crossing he started blowing the locomotive whistle. At a point about two hundred feet east of the crossing the engineer first noticed the auto approaching from the north and when the auto was at a point about one hundred feet north of the intersection, the engineer became aware that the driver of the auto did not intend to stop. Upon realizing that fact, he set the emergency brakes but was unable to bring the train to a stop in time to avoid a collision. It also appears that the auto was approaching the tracks at a speed of about thirty-five miles an hour; that a passenger in Holzschuh's automobile made an observation to the west at a point about two hundred fifty or three hundred feet north of the crossing; that he looked to the left when he was about one hundred fifty feet from the crossing and saw the train approaching. He then yelled at the driver, who, nevertheless, without applying his brakes, tried to "beat the train" and was unable to cross the tracks before the collision occurred.
The speed of the train is in dispute. The engineer in an affidavit stated that the train was traveling at twenty miles per *425
hour. But an affidavit of the district attorney and a newspaper reporter stated that after the collision the engineer stated that the train was traveling at twenty-two miles per hour. The passenger stated that the train was approaching at about the same speed as the automobile which was thirty-five miles an hour.
If there is any issue of fact raised which entities plaintiff to a jury determination, the motion for summary judgment was properly denied. Prime Mfg. Co. v. A. F.Gallun Sons Corp. (1938)
The facts as set forth do not bring the case into the class of those cases where the circumstances show conclusively that the plaintiff has no cause of action. And this is so although the passenger expressed his opinion that the driver was trying "to beat the train." If the train were going at the legal rate of twenty miles an hour and the driver of the car at a rate of thirty-five miles per hour; and if each saw the other at a point approximately one hundred fifty to two hundred feet from the point of collision, the driver would, as a matter of calculation, have been able to pass in front of the train and cross in safety. If he were prevented from so doing by the excessive speed of the train, such speed would be a proximate cause of the *426 collision and the comparative negligence of the parties should be weighed by the jury. In disposing of this question, the presumption in favor of the deceased's exercise of ordinary care, together with facts appearing on the trial, adduced through cross-examination, are to be considered. The motion was, therefore, properly denied.
By the Court. — Order affirmed.