Kaufmann v. Chicago, Milwaukee & St. Paul Railway Co.

Wisconsin Supreme Court

Kaufmann v. Chicago, Milwaukee & St. Paul Railway Co.

159 N.W. 552, 164 Wis. 359, 1916 Wisc. LEXIS 14

CourtWisconsin Supreme Court

DecidedDecember 5, 1916

StatusPublished

Cited by6 cases

This text of 159 N.W. 552 (Kaufmann v. Chicago, Milwaukee & St. Paul Railway Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kaufmann v. Chicago, Milwaukee & St. Paul Railway Co., 159 N.W. 552, 164 Wis. 359, 1916 Wisc. LEXIS 14 (Wis. 1916).

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Opinions

[361]*361Tbe following opinion was filed October 3, 1916:

EoseNberry, J.

Substantially tbe only question is whether or not there was sufficient evidence to sustain the findings of the jury as to the blowing of the whistle and the ringing of the bell. Without entering into a lengthy statement of the facts, it appeared by the testimony of four employees of the defendant company that the bell was rung and the whistle was sounded as required by law. On the part of the plaintiff it appeared that he and his companion, at a point 150 feet from the railway track, stopped, looked and listened for the approaching, train, and then proceeded toward the track down a slight grade at low speed in plaintiff’s aiitomobile, still looking and listening for the train, and that they heard no bell or whistle. It appears quite conclusively that if the whistle was sounded and the bell rung at a .point eighty rods from the crossing it was done at a time when plaintiff and his companion were approaching the railway track. Plaintiff and his companion 'having had their attention called to the fact that the train wa3 due were then listening for the train, therefore their testimony cannot be said to be merely negative. It cannot be said as a matter of law that two men riding in an automobile driven at low speed down a slight grade are in such a position that they cannot hear the whistle and bell of an approaching train at a distance of. eighty rods. There being a conflict in the evidence, the question was correctly submitted to the jury, who found the defendant negligent.

The negligence of the defendant being established, the plaintiff was not guilty of gross negligence in failing to apply his emergency brake or in failing to adopt other possible means of escape from a dangerous situation created by the negligence of the defendant.

By the Court. — Judgment affirmed.

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[361]*361Tbe following opinion was filed October 3, 1916:

EoseNberry, J.

Substantially tbe only question is whether or not there was sufficient evidence to sustain the findings of the jury as to the blowing of the whistle and the ringing of the bell. Without entering into a lengthy statement of the facts, it appeared by the testimony of four employees of the defendant company that the bell was rung and the whistle was sounded as required by law. On the part of the plaintiff it appeared that he and his companion, at a point 150 feet from the railway track, stopped, looked and listened for the approaching, train, and then proceeded toward the track down a slight grade at low speed in plaintiff’s aiitomobile, still looking and listening for the train, and that they heard no bell or whistle. It appears quite conclusively that if the whistle was sounded and the bell rung at a .point eighty rods from the crossing it was done at a time when plaintiff and his companion were approaching the railway track. Plaintiff and his companion 'having had their attention called to the fact that the train wa3 due were then listening for the train, therefore their testimony cannot be said to be merely negative. It cannot be said as a matter of law that two men riding in an automobile driven at low speed down a slight grade are in such a position that they cannot hear the whistle and bell of an approaching train at a distance of. eighty rods. There being a conflict in the evidence, the question was correctly submitted to the jury, who found the defendant negligent.

The negligence of the defendant being established, the plaintiff was not guilty of gross negligence in failing to apply his emergency brake or in failing to adopt other possible means of escape from a dangerous situation created by the negligence of the defendant.

By the Court. — Judgment affirmed.

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159 N.W. 552, 164 Wis. 359, 1916 Wisc. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaufmann-v-chicago-milwaukee-st-paul-railway-co-wis-1916.

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