Gallagher v. Chicago N.W. R. Co. , 255 Wis. 15 ( 1949 )

^* Motion for rehearing denied, with $25 costs, on September 13, 1949. This was an action commenced on July 23, 1947, by E. W. Gallagher and Mary Lou Gallagher Olson, by E. W. Gallagher, her guardian ad litem, plaintiffs, against Chicago North Western Railway Company, defendant, and Donald L. Olson, impleaded defendant, to recover damages for injuries sustained in a collision between an automobile in which Mary Lou Gallagher Olson was riding and a passenger train of the defendant Railway Company. By stipulation Donald L. Olson, the driver of the automobile, who is now the husband of plaintiff, Mary Lou Gallagher Olson, was impleaded as defendant. The action was tried to the court and a jury. Olson was exonerated from negligence as to lookout and as to listening for approaching trains. He was found negligent as to speed and in failing to stop his automobile. The Railway Company was found negligent as to lookout and exonerated in respect of failing to blow a whistle. The question of negligence in respect of speed was answered in the affirmative by the trial court. Fifty per cent of the negligence involved in the accident was attributed to Olson and fifty per cent to the Railway Company. On June 11, 1948, judgment was entered upon the verdict in favor of plaintiffs and against the Railway Company and Olson. A corrected judgment to the same general effect was entered on June 12, 1948. Defendant Railway Company appeals. This case involves a grade-crossing collision between a passenger automobile and a passenger train. The accident occurred on December 12, 1946, at the intersection of the North Western tracks and Corry street within the city of Madison. The time of day was 5:15 p.m. The street lights were burning and there were no extraordinary conditions affecting visibility or traction. Olson was driving his 1941 Chevrolet sedan in a northerly direction and plaintiff, Mary Lou Gallagher, was sitting to his right. The passenger train was proceeding west. It consisted of six cars of the streamline type hauled by a steam locomotive. As it approached Corry street the train passed the Chicago, Milwaukee St. Paul tracks some nine hundred feet east of Corry street and also Waubesa street which is about the same distance from Corry street. Its speed was twenty to thirty miles an hour. The testimony is that four blasts of the locomotive whistle were sounded at Waubesa street, one block away. As the tracks approach Corry street there is a slight curve from the south. There is also a house fifty-three feet south and east of the center of the track and there are some poles and shrubs partly on the railroad right of way and partly on private property which obstruct the view to the right from an automobile going north. However, at sixty-five feet south of the south rail of the track there was a view two hundred thirteen feet and at sixty-five feet from the center of the track a clear view of two hundred twenty-five feet. The view lengthens at sixty feet to four hundred feet and at fifty feet to five hundred eleven feet. There was a single track. A wigwag operated automatically at Waubesa street and was visible from a point fifty feet south of the Corry street crossing. The fireman claims to have seen the automobile when the train was one hundred to one hundred fifty feet from the crossing and to have immediately pulled the whistle. He thought at the time that the car was going to stop.

The Railway Company contends that no causal negligence was shown on the part of its agents and employees. It contends that its speed which was nowhere testified to be greater than thirty miles an hour was not causal and that there was no evidence of improper lookout.

The question whether the speed of the train had any causal connection with the collision is a close one under the cases ofEllis v. Chicago N.W. R. Co. 167 Wis. 392,167 N.W. 1048; Umlauft v. Chicago, M., St. P. P. R. Co.233 Wis. 391, 289 N.W. 623; and Bellrichard v. Chicago N.W. R.Co. 247 Wis. 569, 20 N.W.2d 710. The train was not drawn by a Diesel engine, and while it was quieter than an ordinary train, it was not comparable in this respect with the train involved in Webster v. Roth, 246 Wis. 535,18 N.W.2d 1. On the other hand, there was a curve in the track and obstructions existed as in the Ellis Case. Since, however, plaintiff was a passenger in the car and with support in the evidence was found not guilty of negligence, it makes no difference in this case how negligent the Railway Company was or the respects in which it was negligent. We are satisfied that the evidence supports the finding of improper lookout and we shall not attempt to determine whether the concededly unlawful speed of the train was a cause of the collision. Two of the witnesses testified that the time elapsed between the blowing of the whistle and the impact between the train and the automobile was a matter of a fraction of a second. The testimony of the fireman was that he saw the car and immediately sounded the whistle at one hundred fifty feet from the crossing. At twenty-five or thirty miles per hour this would mean that the train was at that time four seconds from the crossing. It appears to us that the jury could conclude upon this evidence that since the whistle was not blown until a fraction of a second before the collision the lookout of the fireman was neither adequate nor timely.

Defendant contends that as a matter of law plaintiff, Mary Lou Gallagher Olson, was guilty of contributory negligence in respect of lookout and listening. We are of the view that the contributory negligence of Mary Lou Gallagher Olson as a guest in the automobile was a question of fact and that in this respect the situation is governed by Koscuikv. Sherf, 224 Wis. 217, 272 N.W. 8; Paine v. Chicago N.W. R. Co. 208 Wis. 423, 243 N.W. 205; and Tomberlinv. Chicago, St. P., M. O. R. Co. 208 Wis. 30,238 N.W. 287, 242 N.W. 677, 243 N.W. 208. Several errors are alleged as a basis for defendant's contention that the Railway Company is entitled to a new trial. Most of these relate to the matter of the speed of the train or the sounding of the locomotive whistle and all are immaterial in the view that the court takes of this case.

That leaves only one instruction that we deem it necessary to discuss. The court instructed the jury as to the duty of the automobile driver to maintain a proper lookout and also gave the following instruction relating to the lookout to be maintained by the Railway Company:

"Question No. 3 (b) asks you to find and determine whether a proper lookout was maintained' by the Railroad Company. The court has heretofore instructed you on the question of lookout. You are to consider those instructions in making your answer to this question."

No objection is made to the instruction on the lookout to be exercised by the automobile driver but it is claimed that the court erred in refusing to give certain instructions requested by the defendant as especially applicable to an employee in charge of a railroad train. The principal difference between the instructions given by the court as applicable to the driver and those requested is that the latter were to the effect that the engineer and fireman had a right to assume that the driver of an automobile "traveling at a comparatively slow rate of speed toward a grade crossing will stop his car in a place of safety." The requested instruction was largely an expression found in Hynek v. Kewaunee, G. B. W. R. Co. 251 Wis. 319, 29 N.W.2d 45, but it appears to us not to be applicable here where the fireman claims to have instantaneously sounded the whistle upon seeing the Olson car and where the jury had a right to believe that an earlier observation would have resulted in an earlier warning.

By the Court. — Judgment affirmed.

The following opinion was filed November 15, 1949: