Glonek v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

139 N.W. 1126, 152 Wis. 404, 1913 Wisc. LEXIS 85

• Court: Wisconsin Supreme Court
• Decided: February 18, 1913
• Status: Published

Opinion

EjeewiN, J.

Tbe jury found tbe defendant guilty of negligence as charged, acquitted tbe plaintiff of any contributory negligence, and assessed plaintiff’s damages at $1,500. The court below sustained tbe verdict of tbe jury on all points. Under the familiar rule of this court the judgment of the court below sustaining the verdict of the jury upon the facts cannot be disturbed unless clearly wrong.

The assignments of error raise two questions, namely, (1) the negligence of the defendant; and (2) the contributory negligence of the plaintiff.

There is credible evidence to support the finding on both questions, therefore the judgment cannot be disturbed. A very vigorous attack is made by counsel for appellant upon the sufficiency of the evidence to support the verdict. The evidence tends to show that while plaintiff was crossing the track of defendant at the intersection of Elm avenue in the city of Superior, Wisconsin, and carrying a child in her arms, her foot was caught in the opening between the rail and the plank beside the rail in consequence of the defective and insufficient condition of the crossing over defendant’s track; that when plaintiff’s foot became caught she fell upon the track, the child was thrown from her-arms, and she was struck by the train, thrown off the track, and injured. Several photographs were put in evidence, which indicate a rather bad, defective, and insufficient condition of the crossing. The condition appearing from the photographs is corroborated by other evidence given upon the trial. There was also evidence tending to show negligence in the operation of the train by defendant. True, there is a sharp conflict in the evidence on these points, but the credibility of the witnesses and the weight of the evidence was for the jury.

It is also insisted by appellant’s counsel that the evidence shows that the plaintiff was guilty of contributory negligence, and that upon that question the verdict is not supported by the evidence. Counsel presses this point, apparently, with •great confidence. It is said that the point is “almost beyond discussion;” that the approaching train was in full view of plaintiff from a point 350 feet north of the crossing, and several cases in this court are cited as controlling, namely: Koester v. C. & N. W. R. Co. 106 Wis. 460, 82 N. W. 295; Nelson v. D., S. S. & A. R. Co. 88 Wis. 392, 60 N. W. 703; Schneider v. C., M. & St. P. R. Co. 99 Wis. 378, 75 N. W. 169; Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W. 179; Vant v. C. & N. W. R. Co. 101 Wis. 363, 77 N. W. 713; Langhoff v. M. & P. du C. R. Co. 23 Wis. 43; Haetsch v. C. & N. W. R. Co. 87 Wis. 304, 58 N. W. 393; Groesbeck v. C., M. & St. P. R. Co. 93 Wis. 505, 67 N. W. 1120; Lockwood v. Belle City St. R. Co. 92 Wis. 97, 65 N. W. 866.

We shall not prolong this opinion by a review of the foregoing cases. It is sufficient to say that tbe facts in these cases differ quite materially from the facts in the instant case. In the instant case there is evidence that the train was about three blocks away when plaintiff attempted to cross, and the jury would be well warranted in finding that had she not been caught and fallen she had ample time to cross, and that it was not contributory negligence to cross when the train was at such a distance. There is evidence that plaintiff got up after falling and after her foot had been extricated from between the plank and rail, and. was struck as she was about to cross the last rail of the track upon which the train was approaching. True, there is evidence that plaintiff was about twelve feet from the track when the engine was about twelve feet from her and that she made an effort to get across in front of the engine. But on this as on other points the credibility of the witnesses was for the jury. • There is credible evidence in the record to support the verdict that plaintiff was not guilty of contributory negligence.

There is evidence that the day was stormy, the wind blowing, and dust in the air, so one could not see over three or four blocks. One witness testified that at the time plaintiff fell upon the track the train that struck her was two blocks and a half away. Plaintiff testified that she looked and listened before going on the track, saw no train coming on the track she crossed, could not see more than three blocks; “it was awful stormy and wind blowing, dusty; just cloudy like, wind blowing.” We shall not review the evidence further on this point. We think it ample to support the verdict.

The case is quite similar in facts to Hughes v. C., St. P., M. & O. R. Co., which was before this court twice (122 Wis. 258, 99 N. W. 897, and 126 Wis. 525, 106 N. W. 526), in which case it was held that the evidence was sufficient to support the verdict.

We are convinced that no error was committed.

By the Court. — The judgment is affirmed.