| Wis. | Dec 5, 1916
Lead Opinion
Substantially tbe only question is whether or not there was sufficient evidence to sustain the findings of the jury as to the blowing of the whistle and the ringing of the bell. Without entering into a lengthy statement of the facts, it appeared by the testimony of four employees of the defendant company that the bell was rung and the whistle was sounded as required by law. On the part of the plaintiff it appeared that he and his companion, at a point 150 feet from the railway track, stopped, looked and listened for the approaching, train, and then proceeded toward the track down a slight grade at low speed in plaintiff’s aiitomobile, still looking and listening for the train, and that they heard no bell or whistle. It appears quite conclusively that if the whistle was sounded and the bell rung at a .point eighty rods from the crossing it was done at a time when plaintiff and his companion were approaching the railway track. Plaintiff and his companion 'having had their attention called to the fact that the train wa3 due were then listening for the train, therefore their testimony cannot be said to be merely negative. It cannot be said as a matter of law that two men riding in an automobile driven at low speed down a slight grade are in such a position that they cannot hear the whistle and bell of an approaching train at a distance of. eighty rods. There being a conflict in the evidence, the question was correctly submitted to the jury, who found the defendant negligent.
The negligence of the defendant being established, the plaintiff was not guilty of gross negligence in failing to apply his emergency brake or in failing to adopt other possible means of escape from a dangerous situation created by the negligence of the defendant.
By the Court. — Judgment affirmed.
Rehearing
Plaintiff bad judgment for $1,100, $700 'of wbicb was for injuries to bis person and $400 for injuries to bis automobile. Appellant moves for a rebearing upon tbe ground tbat under sec. 1809, Stats., negligence of tbe plaintiff less tban gross negligence bars a recover y for injuries to property, and alleges tbat plaintiff was guilty of sucb negligence. Appellant argues tbat sub. 6, sec. 1809, Stats., applies only to claims for personal injuries or death; tbat plaintiff, being guilty of want of ordinary care, cannot recover for injuries to bis automobile. Tbe question is not presented by tbis record. Appellant made no request for a finding as to any other degree of negligence of tbe plaintiff tban gross negligence. Under sec. 2858m, Stats., it must be presumed, even if tbe construction claimed by appellant be given to sub. 6, sec. 1809, tbat tbe trial court found upon tbat question adversely to tbe appellant, tbat plaintiff was not guilty of a slight want of ordinary care. Upon tbe record we cannot say tbat sucb finding is not sustained by tbe evidence.
Upon tbis motion appellant reargues tbe question as to tbe sufficiency of tbe evidence to sustain tbe finding of tbe jury to tbe effect tbat tbe whistle was not blown and tbe bell was not rung. After a careful re-examination of tbe record we see no reason for modifying our former conclusion.
By the Court. — Motion denied, with $25 costs.