208 Wis. 423 | Wis. | 1932
The appellant claims that the court erred in granting the nonsuits because upon the evidence (1) neither Mr. nor Mrs. Paine was guilty of contributory negligence as matter of law, and (2) negligence of the defendant was a jury question.
(1) That the driver of an automobile whose view is unobstructed as he enters the zone of danger who is killed by driving on a railroad track at a street intersection and colliding with an approaching train is guilty of contributory negligence as matter of law was recently held in Waitkus v. Chicago & N. W. R. Co. 204 Wis. 566, 236 N. W. 531, 237 N. W. 259. The position there taken was taken by the court after full and careful consideration and we see no reason to recede from it. We see no occasion for further discussion of the rule. That the Paines were approaching the railway tracks in the nighttime, under the circumstances here present, does not except them from this rule. The lights of the automobile and the wig-wag signal in operation with its light burning and its bell ringing made the presence of the railway tracks as apparent as they were in the Waitkus Case, and the near approach of the train more noticeably apparent than was that of the train in that case. It is true that in Shaver v. Davis, 175 Wis. 592, 185 N. W. 227, the circumstances of a high blustering wind, a heavy blind
It does not follow from this, however, that the wife was guilty of contributory negligence as a matter of law. The trial judge stated in granting the nonsuit that she was under obligation to use the same degree of care as to lookout that the husband was bound to use if he was driving. This was an erroneous view. It was recently held in Tomberlin v. Chicago, St. P., M. & O. R. Co., ante, p. 30, 242 N. W. 677, 243 N. W. 208, that a guest in an automobile approaching a railroad track is not held to the same degree of vigilance in keeping a lookout as is the driver. It is vigorously contended here that the Tomberlin Case should be overruled. The ruling was made upon a motion for rehearing and reversed our original holding, and a ruling made under such circumstances receives especially careful consideration. Upon reconsideration now given we adhere to the rule there
(2) The complaint charges as negligence failure to ring the engine bell and blow the whistle on approaching the crossing, but the evidence does not raise a jury question as to either of these matters. It also charges (a) excessive speed; (b) insufficient headlight; and (c) insufficient lookout.
(a) The statutory limit of speed at grade crossings in cities where “an efficient electric alarm bell or ‘signal’ is installed and kept in good working order,” as was done here, is twenty miles an hour. The engineer estimated the speed as “approaching” twenty miles an hour. The train went two blocks after the airbrake set before it could be stopped; a speed of ten miles an hour was maintained in passing a depot ten blocks from the crossing where the collision occurred, and from there on was. continuously increased. A witness, whose testimony is impeached but whose credibility was for the jury, who was driving an automobile and who testified, in effect, that he raced with the train for several blocks, places the speed much higher. In our opinion this raises a jury question as to negligence in respect of speed.
(b) The engine was one used in switching, and the “headlight” on the tender was the same as that on the engine. Sec. 192.45, Stats. 1927, requires a headlight on trains sufficient to throw a light in clear weather to enable the operator to discern an object'the size of a man at a distance of 800
(c) There were several dangerous crossings in West Allis and the crossing where the collision occurred was one of them. The fireman was on the side of the- cab from which the automobile was approaching. It was his duty to maintain a lookout when not stoking the fire or attending to the water supply in the boiler. The water supply is governed by turning the injector off and on. By his testimony “It does not make much difference whether one runs two, three, five minutes longer or shorter” without turning the injector off or on, and he turned it off “thirty or forty feet” from the crossing where the collision occurred and it took him “six seconds” to do it. We consider that it was a jury question whether the fireman was negligent in not keeping a lookout while passing the series of dangerous crossings. It follows that the case founded on the death of Mrs. Paine should have been submitted to the jury. The briefs discuss the question whether, assuming that a cause of action lay under sec. 331.04, Stats., in behalf of -the surviving relatives
By the Court. — The judgment of the circuit court is affirmed.