Linden v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

156 Wis. 527 | Wis. | 1914

The following opinion was filed October 7, 1913:

Siebeckee,, J.

The appellant assails the ruling of the trial court in refusing to grant its motion to reverse the. jury’s finding that the bell was not rung. We have referred in detail to the evidence of the witnesses on whom the plaintiff relies to support the jury’s finding on this issue. An examination thereof shows that these witnesses were not giving their attention to observe whether or not the bell was ringing when the train approached the crossing and that their attention was directed to other matters.' The most that can be claimed to sustain plaintiff’s contention on this point is that these witnesses did not hear the bell ringing. The witness Bergman, who stated that he was in a position to see and hear the bell, also states that he heard the whistle almost continuously and that he could not hear the bell ring when the whistle was sounded. The evidence is clear, as the court found, that the whistle was almost continuously sounded from the time that Linden was so situated that he could see the approaching train until the collision occurred. The engineer, fireman, and brakeman who rode on the engine testify positively that the bell was continuously rung, as the law requires, from the time the crossing signal was given until the collision occurred. Their evidence is corroborated by four disinterested witnesses, who testify that they heard the bell ringing and that they were so situated that they could hear it and had their attention directed to this fact. The witnesses upon whom the plaintiff relies to establish this fact testify only negatively. Their narrative of the events discloses that their attention was not directly given to the observation of this fact and that they were giving closer attention to other matters within the field of their observation. The negative character of the evidence in support of this finding of the jury is wholly insufficient to sustain it in the light of the positive testimony to the contrary. We are led to the conclusion that the trial court should have granted plaintiff’s motion to change the jury’s answer to the question in the verdict covering this issue. Jordan v. Osborne, 147 Wis. 623, 133 N. W. 32; Sutton v. C., St. P., M. & O. R. Co. 98 Wis. 157, 73 N. W. 993; Wickham v. C. & N. W. R. Co. 95 Wis. 23, 69 N. W. 982. From the foregoing it results that all questions of negligence charged as the proximate cause of Linden’s death, except the negligent running of the train, drop out of the case. The question of Linden’s gross negligence as a contributing cause to proximately .produce his death is also immaterial in view of our conclusion upon the point of his want of ordinary care.

' The jury found that the defendant company was negligent in running its train over the crossing in question at a dangerous rate of speed and that such negligence was the proximate cause of Linden’s death. This brings us to the consideration of the question presented by the defendant’s exceptions: Does the evidence show as a matter of law that Linden was guilty of a want of ordinary care which proximately contributed to produce his death? The facts are practically without dispute and tend to show that the decedent had ample opportunity to observe the approaching train as he drove toward the track from a point 133 feet distant therefrom, and that his view conld he intercepted only for a small part of this distance hy the beer honse and car before reaching a point forty-five feet from the track, from which point he had a continnons, clear, open view of the approaching train. The claim that piles of railway ties interfered with his view within this forty-five foot space is not sustained, as these piles of ties were not high enough to interfere with seeing the approaching train. The only reasonable explanation of his collision with the train, in the light of the situation and Linden’s ability to see it, is that he omitted to look for it, or, if he did look and see it, that he recklessly drove onto the track when the train was so near as to be obvious that it must collide with him. In addition to these facts and circumstances shown by the situation, we have the evidence of witnesses to the effect that they saw and observed that he neither stopped, looked, nor gave any attention to the train in driving onto the track from the point forty-five feet west of it; and that he manifested the heedlessness of an intoxicated person in the presence of imminent peril to his life. In no conceivable way does the evidence permit of an interpretation from which the inference could be drawn that he exercised ordinary care in approaching the crossing and in driving onto it in view of the peril of being run down by the train. It is plain that he was guilty of a want of ordinary care and prudence in driving onto the track as he did and that such want of care proximately contributed to cause his death. The inevitable conclusion necessarily follows that the court erroneously refused to grant defendant’s motion to so find as a matter of law and to change the answers to the questions accordingly. The answers to the questions of the verdict should have been changed as requested by defendant’s motion, and upon the verdict so modified judgment dismissing the complaint should have been awarded.

By the Court. — The judgment appealed from is reversed, and the canse remanded with directions to change the answers to the questions as indicated in the opinion and thereupon award judgment dismissing the plaintiff’s complaint.

A motion for a rehearing was denied, with $25 costs, on April 9, 1914.