191 Wis. 184 | Wis. | 1926
This action was brought to recover damages for personal injuries sustained by the plaintiff as the result of a collision between the automobile in which she was riding and a moving freight train. It appears that at about 1:20 a. m. December 21, 1924, the plaintiff, with two young men; all occupying the front seat of a Ford coupé, was driving along a highway leading into Cudahy. While so riding the car collided with a freight train moving across the highway along which plaintiff and her companions were proceeding, resulting in personal injuries to the plaintiff.
The case was tried before a jury. The jury found negli
.This order was within the discretion of the court and will not be disturbed unless there has been a clear abuse of discretion, or unless it appears that the trial court proceeded upon an erroneous view of the law: Lange v. Olson, 185 Wis. 657, 202 N. W. 361.
It is contended by defendant that there is rto evidence in the case upon which the finding of negligence on the part of the railroad company can be sustained. It appears that the railroad company had voluntarily installed at this crossing an electric alarm bell and an electric wigwag to signal the approach of trains at this crossing. The jury found that the banner of the signal device failed to swing, that the bell of said signal device failed to ring, and that the light of said signal device failed to burn, just prior to the time plaintiff was- injured.' These are the only facts relied upon to convict the company of negligence constituting the proximate cause of plaintiff’s injuries.
While it may be conceded that these various signal devices were not working properly, we are confronted with the fact that the train was actually and physically upon and passing over the crossing at the time of the accident. It is well known that signal devices such as those in question are installed by railroad companies, sometimes voluntarily and sometimes pursuant to the requirements of law, not for the purpose of warning travelers upon the highway of the actual presence of a train upon the crossing but for the purpose
Because there was no negligence on- the part of the railroad company which can be said to have proximately contributed to plaintiff’s injuries, her complaint should have been dismissed. The granting of a new- trial was therefore not only an abuse of discretion, but was due to an erroneous view of the law.
By the Court. — Order reversed, and cause remanded with directions to dismiss plaintiff's complaint.