147 Wis. 623 | Wis. | 1912
Tbe following opinion was filed November 14, 1911:
Tbe plaintiff was nonsuited, and tbe inquiry is, Was there a prima facie case made for tbe jury, giving tbe evidence and all reasonable inferences therefrom their utmost probative effect? On tbe subject of defendants’ negligence it is shown that they are operating as receivers an electric interurban railway running between Milwaukee and Chicago. Tbe deceased came to bis death on October 2, 1908, in consequence of a collision between bis automobile and defendants’ electric car at a highway grade crossing of tbe interurban railway between Racine and Kenosha. Tbe schedule time of tbe car between Racine and Kenosba was twenty minutes, tbe distance ten miles, and there were in this distance five or six stops. Tbe distance between Racine and Evanston was fifty miles, and tbe time one hour and fifty-two minutes including stops. So that tbe whole distance bad to be covered at a rate of between twenty-six and twenty-seven miles an hour, and tbe distance between Racine and Kenosba at tbe rate of thirty miles an hour including stops.
Tbe plaintiff’s evidence is directed to two grounds of negligence, namely, excessive speed and failure to signal for tbe crossing. Tbe highest estimate of speed is fifty miles per hour. We cannot close our eyes to tbe fact that in order to obtain an average speed, including slackening and stops, of thirty miles an hour, the speed at some points must reach very close to, if not quite touch, fifty miles per hour. It is common knowledge that passenger trains on a good roadbed fre
The second ground of negligence rests upon the failure to signal for the crossing. There are no statutory regulations directly applicable to electric interurban cars and covering such a situation. Nevertheless ordinary care would doubtless require a signal, and it was customary in the operation of the road in question to give such signals. The motorman testified : “I blew my whistle when I was about 600 feet north of the crossing; that was my usual custom.” This is met by the testimony of only one witness, a Mr. Lippert, who testified as follows: “After I saw the car through that opening I didn’t hear any signals whatever.” The opening referred to was through the trees or between the trees and buildings where at a point on the highway 355 feet east of the crossing some section of the railway track to the north of the crossing was visible. “Q. State whether or not you paid any attention or listened for signals. A. I don’t believe — I believe my mind was pretty well occupied, but I didn’t hear anything. I am
By the Gourt. — Judgment affirmed.
A motion for a rehearing was denied January 9, 1912.