Pargeter v. Chicago & North Western Railway Co.
58 N.W.2d 674
Wis.
1953
Check Treatment

*1 then, and interest should were damages, unliquidated not be allowed on such balance. modified to award Judgment plaintiffs Court.— trial, and the costs and disbursements of damages

$660.31 and, modified, $73.30, the trial court at so allowed by to either on the affirmed. No costs allowed party appeal. Chicago vs. Appellant, Pargeter, & North Western Railway Company, Respondent.*

May 7 June 1953. * denied, costs, September on without rehearing Motion 1953. *2 was a brief

For the there F. by appellant Hugh Oldenburg, counsel, Madison, H. Lucas Thomas of both of and- attorney, Mr. Oldenburg. by and oral argument there was a brief For the E. H. Bor respondent by gelt, Powell, Milwaukee, Roper, and W. J. all of Edmund Roper. Mr. oral argument Our conclusion that the court erred finding

Gehl, J. that plaintiff a matter of law guilty it unneces- makes entering before failing stop crossing than the facts. to recite more we have of sary Stats., as follows: Sec. 85.92 (1), provides a on or No of a vehicle shall drive across “(1) operator railroad with the main-line tracks crossing any grade railroad interurban railroad while officer or any peace or while device any or signals warning signals employee stop; case after and inves- that in the latter if except stop stop, car he finds that train or is approaching no tigation proceed. cross- of this section do provisions apply laid on or with interurban railroad tracks which are ings incor- limits of any streets within along public corporate porated city village.” that, of the fact

Defendant contends regardless one of the railroad motorist be invited *3 company’s to the statute an absolute duty upon employees proceed, places he him to before and stop investigate proceeds. in resembles that which

The rule stated the statute been referred to the rule”—that “Pennsylvania generally a railroad on the a about to cross track highway traveler listen, if as look and he fails to do must well and stop, as matter law recov- barring he is of a of negligence so guilty a train. if comes in contact with moving ery that the traveler only which requires stop Our statute officer,a a a railroad device warning when employee, peace him than does no greater duty upon to signals stop imposes all him to rule which under requires stop the Pennsylvania circumstances. rule, its how- has relaxed basic court Pennsylvania that a at the

ever, that it watchman has held if appears and the and a direction to traveler to proceed, has given crossing acts, the the the of depends question driver upon C., v. C. Ayers Pittsburg, is for the jury. of the driver care 958; 124, 201 v. Pa. 50 Atl. Gerg R. Co. St. L. (1902), & 316, 960; 254 Pa. 98 Atl. R. Pennsylvania (1916), Co. 246, L. E. R. Co. 278 Pa. & Pittsburgh (1923), v. Hoffman 274; 122 Atl. Johnson v. Director General Railroads of 278 Pa. (1924), 123 Atl. 484. We with the agree rea and the conclusion soning of the court those cases. The had the assurance of the defendant’s employee there nowas train within such distance approaching as to threaten his the tracks. The safety crossing was flagman in better than he to position ascertain and the know fact. True, the movement of the device warning notice of gave train; the of the but presence when he plaintiff, the given the signal by proceed, have might properly as sumed, instance, for that the train had or was about stopped a at short distance from the stop and that there crossing fore he on with M., go safety. Lynch v. Chicago, St. P. & P. R. Co. 240 N. Wis. 794. In (1932), view of these considerations cannot we that the say question his of of law. It was for question the jury to determine whether under the circumstances the plaintiff all did that a reasonably man could be prudent do. expected Defendant contends with some force that the does its support jury’s finding that invited employee plain- tiff across the track. Defendant’s motion after only verdict was for It made no judgment dismissing complaint. motion to answer. At close change testimony it moved a directed verdict. not consider this We may because not file a contention defendant did motion review 274.12, court, Stats.; of the sec. Noll any v. rulings *4 214 574; 252 W. Nugent Wis. N. Geier v. (1934), 295 N. W. Scandrett Wis. 704. (1941), not that the We assume determination of the jury’s to attributable the respective percentage parties the same had been would have been to answer they permitted as to failure to There the must question plaintiff’s stop. be a trial. therefore new cause the reversed and remanded Judgment Court.—

for a trial. new

253a 11, 1953: September

The was filed following opinion Defendant motion (on rehearing). Gehl, J. that we over- moved for a It asserts rehearing. correctly Stats., in refusing looked the of sec. 274.12 (2), provisions is no to review its contention that there support the railway the that the lantern signal jury’s finding given the to enter an to the constituted invitation flagman plaintiff crossing.

If evidence is its contention as the of the insufficiency the such support judg- correct determination would merely from, ment and such circumstances it may under appealed is said have a review without notice thereof. What serving to have our as to defendant’s original opinion inability review of is the therefore withdrawn. question was necessarily

The of the to the question answer jury as to the manner which to be based the testimony upon lantern entered the cross- as swung plaintiff flagman offered to manner oral ing. testimony by plaintiff and in which lantern was is as clear unmis- swung be. He a witness takable in as it meaning produced automobile, him, him in another one Smith who followed instance, substance, and for flagman testified in “he “like the lantern crosswise this” (indicating), waving this” “I could see a motion like (indicating). was making cross- this way” Upon the lantern (indicating). going from plaintiff examination it was obtain sought apparently manner in of the which lantern a recordable description an oral he give description was swung. Again attempted motion of arm.' The it further with a his and described the lantern across the street testified that waved traveling. upon occurs and what from consider what appears A jury may testimony as the Knox given orally. well observation its Johnson, In Hiller *415. Wis. 15 Wis. v. Bigelow, v.

253b 19, 154 N. an action recover damages per- sonal over injuries, objection plaintiff permitted his arm and raise down before the for the up jury purpose resulted, that in- demonstrating an crepitation evidencing jured attention of the joint. called imperfect jury to certain sounds at appeared the movement of arm. were Obviously, sounds unrecordable. This court held that the trial court not in did err the demon- permitting stration, thus that it is for the holding con- proper jury sider unrecordable demonstrations at a verdict. arriving are unable to from an

We examination of the say record was not infer that from the oral testi- jury permitted and the manual that the action of the mony descriptions an constituted invitation to the to cross It not ahead of the train. been established the defend- which, ant there is credible no rea- under any view, sonable admits inferences which have been drawn jury answering question. We may M., disturb the answer. Kramer v. Chicago, St. P. & R.P. Co. 226 Wis. 276 N. W. 113. the Court.—Motion denied without costs.