179 Wis. 323 | Wis. | 1923
Sec. 1809, Stats., prohibits the running of trains through any incorporated city or village faster than twelve miles an hour while approaching and within twenty rods of any public traveled grade street crossing in such city or village, unless the railroad company shall maintain and operate an efficient electric alarm bell or signal, properly installed and kept in good working order, at such public traveled grade crossing, in which case said company may run a train or locomotive at a speed of not to exceed twenty miles an hour, while approaching, and within twenty rods of, and while crossing, such public grade crossing. It is also provided in the same section that in any action brought to recover for personal injuries or death, if it appear that the injury or death was caused by the negligent omission of the railroad company to comply with the requirements of sec. 1809, the fact that the person injured or killed was guilty of a slight want of ordinary care contributing to the injury or death shall not bar a recovery. .
Appellant claims that there is no evidence to sustain the answer of the jury to the lirst question. An examination of the record discloses that eight witnesses testified positively that the electric alarm bell was ringing at the time of the accident. These witnesses were all in a position where they, might hear, and they testified that they did hear the ringing of the bell at that time. While four of the witnesses so testifying were members of the train crew, four disinterested witnesses testified positively that the bell was ringing. This evidence is contradicted only by the evidence of the plaintiff and the witness Sperbeck, who was a passenger in the plaintiff’s car. Their testimony is merely to the effect that they did not hear, the bell ring. These witnesses were in an inclosed car. The plaintiff was somewhat deaf in one ear. His testimony shows that he must have been preoccupied. While he testified that when fifty feet from the track he looked both to the east and west, he says that he did not notice the flat cars on the spur track. He explains his reason for not seeing the flat cars by saying “my mind was centered on something else.” The witness Sperbeck was in the rear seat in conversation with his companion. His attention was not directed to the alarm bell and he was not called upon to specially observe whether it was ringing. The testimony of these two witnesses is negative in character as well as form. This testimony is insufficient to support the finding of the jury in the light of the overwhelming positive testimony to the contrary. Wickham v. C. & N. W. R. Co. 95 Wis. 23, 69 N. W. 982;
While the jury found that the defendant was guilty of a want of ordinary care in placing the cars on the sidetrack so that they extended into Church street, it also found that the plaintiff was guilty of a want of ordinary care which proximately contributed to the injury. Even though, as also found by the jury, plaintiff’s negligence did not amount to more than a slight want of ordinary care, it defeats his right of recovery by reason of any act of negligence on the part of the railroad company except its failure h> comply with the requirements of sec. 1809. The negligence o’f the railroad company in placing cars on the sidetrack so that they extended into Church street is not within the scope of sec. 1809, hence plaintiff’s contributory negligence, even though slight, bars his recovery. As to whether plaintiff’s negligence amounted to more than a slight want of ordinary care, it may be remarked that his conduct was very similar to that of the plaintiff in Twist v. M., St. P. & S. S. M. R. Co. 178 Wis. 513, 190 N. W. 449, which this court held constituted more than a slight want of ordinary care.
By the Court. — Judgment reversed, and cause remanded with instructions to enter judgment dismissing plaintiff’s complaint.