Home/Wisconsin Supreme Court/Riley v. Chicago & North Western Railway Co.

Riley v. Chicago & North Western Railway Co.

38 N.W.2d 522, 255 Wis. 172
CourtWisconsin Supreme Court
DecidedJune 6, 1949
StatusPublished
Cited by4 cases

This text of 38 N.W.2d 522 (Riley v. Chicago & North Western 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
Riley v. Chicago & North Western Railway Co., 38 N.W.2d 522, 255 Wis. 172 (Wis. 1949).

Opinion

Rosenberry, C. J.

As already stated, the accident occurred on the 17th day of March, 1947, at about 6:50 o’clock in the morning. William C. Riley, the father of Alice R. Thompson, deceased, and administrator of her estate, was an' eyewitness of the accident. The material facts to which he testified in substance are as follows :

I am fifty years old. I am also the administrator of the estate of William Allen Thompson, who was my daughter’s husband, and guardian of William Allen Thompson, Jr., my grandson. My house is the third house from Commercial avenue on the east side of Superior street. At the time of the accident I was employed at the Celon Company about a mile from my home as night watchman. I got home a little after 6 that morning. William and Alice were up at that time. My property backs right up against the railroad right of way. I took out some rubbish which I burned in the ditch. While I was burning the rubbish I saw William and Alice as they passed by me. They came out of the house and through the gate and over the ditch. They were going to their truck which was parked about one hundred feet from where I was burning my paper. It was parked in the railroad roundhouse parking lot. The railroad parking lot was east of the railroad tracks and the truck was parked about one hundred feet south of Commercial avenue. Bill and Alice walked across *177 the railroad right of way and the track single file. At that time William and Alice were living with me. The truck was parked facing the tracks, that is, facing me. Both of them got in the truck and then he got out and stood by the windshield of the car and it looked like he was wiping off the windshield. Then he got back in on the left-hand side of the truck, then he backed out enough so that he could get started in the driveway. Then he started north toward Commercial avenue. When he got onto Commercial avenue he turned to the left and proceeded west toward the crossing. From the time that he started forward with the truck until it got to the crossing the truck did not stop at any time. I would not say the truck was proceeding over five miles an hour. It did not seem to increase or decrease its speed at any time. I mean it was going at an even speed all of that time. After Bill and Alice started backing out I walked across the tracks. When they drove out on Commercial avenue I was on the east side of the tracks watching them. I crossed the tracks because my dog followed them over there and I went to see if I could get the dog. On the crossing the truck was struck by a Chicago & North Western train. Before it struck the truck I saw the train a short distance away, a couple of hundred feet, maybe a little more than that. That is when I heard the train. When I looked up and saw the train the truck was approaching the crossing, and had not quite reached the wigwag there yet; just about on the first track. The wigwag was working. Exhibit 14 shows the driveway out of which the truck drove and then turned left to go along Commercial avenue to the railroad tracks. At the point where you come onto Commercial avenue you cannot see very far at first but after you get closer you can see very good. You cannot see as far as the Sherman avenue crossing.

Harold Gilson, the locomotive fireman on the train in question, was the only other surviving eyewitness. He testified in substance as follows:

*178 In my estimation when I first saw the truck it was from eighty to ninety feet from the crossing. The truck was traveling slow and I estimated the speed between fifteen and twenty miles an hour. I continued to watch the truck. When the truck passed the wigwag signal I realized then that it wasn’t going to stop. At that time it was too late to take any action. I merely let a yell out of me and jumped down on the deck. When I saw the truck there before it reached the wigwag- signal I certainly did expect it would stop. The bell was ringing, it was turned on about the whistling post for Sherman avenue. It rang until after the engine came to a stop. I observed the wigwag on the left or my side of the engine as I came down Commercial avenue. The wigwag was in operation and the light was flashing. I said I first saw the truck when I was approximately four hundred feet from the crossing. It is my estimation that the truck at that time was eighty to ninety feet from the crossing. It proceeded at an even speed to the crossing. I thought after the truck passed the signal that it increased speed. It looked like to me that it did. I couldn’t see it slow down. I watched it all the time. When I first saw it it was eighty to ninety feet from the crossing. I didn’t say it was going from fifteen to twenty miles an hour. I think I said ten to fifteen. When I first saw the truck it was on Commercial avenue on the concrete, moving in a westerly direction. I didn’t see it in the roundhouse parking lot.

From the testimony it appears that the wigwag when trains were approaching displayed a red light, the bell was rung, and the wigwag operated. There was also testimony to the effect that the wigwag at times operated when trains were not approaching but after trains had passed. At the time in question the speed of the truck was variously estimated at from five to fifteen miles an hour. The most reliable estimate is that of the witness Riley, — five miles per hour. The speed of the train was estimated at from twenty to seventy miles an

*178a

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Cite This Page — Counsel Stack

Bluebook (online)
38 N.W.2d 522, 255 Wis. 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riley-v-chicago-north-western-railway-co-wis-1949.