156 Wis. 485 | Wis. | 1914
The consequence of the collision complained of is unusual but not remote. It was within the range of
First. With reference to jury finding (1), it appears without controversy that the train in question was what is known as a limited passenger, carrying seven coaches. It leaves Chicago at 2:45 a. m., runs to Minneapolis, and arrives at the latter city, a distance of 465 miles, at 4:40 p. m. There are about sixty-five stops on this trip and the average stop is three to five minutes. The train is drawn by three different engines, the first being from Chicago to Eond du Lac, the second from there to Chippewa Falls, the third from there to Minneapolis. It takes half an hour to get out to the city limits of Chicago and about half an hour to go the ten miles from St. Paul to Minneapolis. Three hundred and sixty-eight miles of this trip are through the- state of Wisconsin, and in this part of its route there are 362 grade crossings without gates, flagmen, or bells and somewhat similar to the crossing in question. About sixty miles of this distance is through incorporated cities and villages, where a low maximum speed is prescribed by statute. The crossing in question is between Cadott and Chippewa Falls, which stations are twelve and three-tenths miles apart, and, allowing for stops and slowing up, the train had fourteen minutes in which to make that distance.
It must be apparent that to make the schedule time between Chicago and Minneapolis under the circumstances above detailed the train must reach a speed of sixty miles an hour or thereabouts on some parts of the route. During a run of fourteen hours a locomotive cannot be always kept at its full-speed efficiency even between crossings and outside of cities and villages, and an absolutely uniform rate of speed
Tbe actual speed of tbe train is fixed by tbe evidence.' Witnesses estimate tbe speed at not less than sixty miles per hour, while a speedometer on tbe engine registered fifty-seven miles per hour. There is no room for estimate or even conjecture. Fifty-seven miles per Four is that speed found by tbe jury and most favorable to support tbe judgment, and hence fifty-seven miles an hour it must be. But this immovable fact affects all tbe other facts in a most extraordinary manner. Tbe distance from the center of tbe crossing between tbe tracks east to tbe whistling post is 1,320 feet or eighty rods. Hence the time in which all tbe transactions testified to occurred is 15.8 seconds. Tbe ordinary velocity of sound in still air at ordinary temperature would cut off from this 1.2 seconds; with tbe wind blowing as it was, still more. This would not, of course, limit tbe time of tbe train’s travel, but would limit the time for getting over tbe crossing after tbe signal was given and beard. Tbe threshing rig, consisting of a traction engine fifteen feet long, a separator twenty feet long bitched by its pole to tbe rear of tbe traction engine, made a moving train forty or forty-five feet long, allowing ten feet for tbe pole and connections. Tbe highest speed at which this moved was four miles per
Witnesses on the part of the plaintiff testify that the train did whistle, some say just as it left the west end of the curve, some say at forty rods distant, and one witness, who was about one fourth of a mile west of the crossing and the train coming toward him at the speed stated, testifies that the train did not whistle until within twenty feet of the tractor. All this refers, not to the crossing signal, but to the alarm or ■danger whistle, which the trainmen say was also sounded as ■soon as the tractor was observed on the crossing and at about ■500' feet distant therefrom. The automatic hell was still ringing when the train stopped after the collision, hut no one seems to have heard it before. This testimony on the part of the plaintiff tends to corroborate the trainmen and clashes with other testimony on the part of the plaintiff tending in some slight degree to sustain the charge that a proper lookout was not kept. Omitting for the present the fact that the fireman was not at the cab window on the left side, the testimony of the engineer is that he blew the whistle at the whistling post and was at his post at the throttle lever keeping a lookout, saw the tractor on the track at the crossing when about 500 feet therefrom, then blew the alarm whistle, then set the air brake, which brought him within about 100 feet of the tractor. He then called to his fireman and both crouched down below the boiler head to avoid being hit with flying missiles or swept off with the cab in the then inevitable collision. This was quite a number of movements to make in six seconds. There is no room for doubting that he made all these movements within six seconds or less. He did not see the tractor before because he was at his place on the northerly or right-hand side of the cab and the tractor was approaching from the other side. The testimony of plaint-
It is conceded that the fireman was not at the lookout window on the south or left-hand side at any time during the run from the whistling post to the place of collision. He testifies that he began work at North Eond du Lac that morning at 6:45 a. m. and they were nearing the end of his run at Chippewa Falls. In this time he had to shovel ten tons of coal, the last five tons twice, shake down the grates, rake the fire, wet down the coal, take on water at stops, clean the deck of the cab, take signals at the fireman’s side, and keep a lookout. He could not look out standing on the deck of the cab, but must go up two steps into the proper position. His duties were such that he could not look out more than one minute in seven. At the time in question he had less time than usual to look out, for the coal in the tender at the end nearest to the hoiler had been consumed and he was obliged to bring the coal from the rear end of the tender forward and also to feed it into the firebox with sufficient regularity to keep up steam, and at this stage of the journey that took all his time. It would not be possible to keep up the required steam on this train and also keep a lookout at all curves and crossings. The locomotive engine at high speed has a rocking or rolling motion and he would lose about a second in focusing an object on the track or very near it, but he says if he had seen this traction engine he would not have known it was going to attempt to cross. This testimony is not controverted i and is no doubt true.
Again, this tractor was either on the track or approaching it when the train was at the whistling post. If approaching the track and under such easy control as such machines are, the train was not obliged to slacken its speed for it, for the operators had a right to presume it would stop before attempting to cross ahead of the oncoming train. If on the track at that time, the trainmen, as the evidence shows, at once upon observing this took every precaution. It requires no evidence to show that it was utterly impossible to. stop a train of this weight and speed in time to avoid a collision after the trainmen, in the exercise of ordinary care, had observed the traction engine on the track. It is not the law that an object can be by third persons put upon a railroad track in such a way that a collision therewith is inevitable and then charge the railroad men with negligence merely on the ground that a collision occurred. There must have been some lack of ordinary care causing the injurious result on their part or on the part of the railroad company through other agents. We find no such evidence in the record. We have not found it necessary to consider the rule of the New York cases cited in Ransom v. C., St. P., M. & O. R. Co. 62 Wis. 178, 22 N. W. 147 (overruled on another point in Walters v. C., M. & St. P. R. Co. 104 Wis. 251, 260, 80 N. W. 451), with reference to the alleged omission of statutory signals.
By the Court. — Judgment reversed as to the appellant only, and remanded with directions to dismiss the complaint as to the appellant only.