Worden v. Chicago & Northwestern Railway Co.

Wisconsin Supreme Court

Worden v. Chicago & Northwestern Railway Co.

193 N.W. 356, 180 Wis. 551, 1923 Wisc. LEXIS 138

CourtWisconsin Supreme Court

DecidedMay 1, 1923

StatusPublished

Cited by17 cases

This text of 193 N.W. 356 (Worden v. Chicago & Northwestern 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

Worden v. Chicago & Northwestern Railway Co., 193 N.W. 356, 180 Wis. 551, 1923 Wisc. LEXIS 138 (Wis. 1923).

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Opinion

Eschweiler, J.

Wherein defendant may have breached any of its statutory or common-law duties towards the plaintiff is immaterial on this appeal because the complaint shows upon its face such want of ordinary care for his own safety on plaintiff’s part as requires holding, as a matter of law, that his contributory negligence must defeat any claim of right to recover.

Knowing of the track and highway crossing he drove his automobile on a very dark night into a standing freight train. With proper headlights on his automobile and driving with the degree of care the law requires of him, he should have seen and known of such obstruction in time to have avoided the collision. However liberally we are bound to and do construe the language of this complaint in an effort to sustain it as stating a possible cause of action, we are nevertheless compelled to hold that the demurrer should have been sustained. Such ruling is required by many decisions here and elsewhere. Lauson v. Fond du Lac, 141 Wis. 57, 60, 123 N. W. 629; Yahnke v. Lange, 168 Wis. 512, 515, 170 N. W. 722; Puhr v. C. & N. W. R. Co. 171 Wis. 154, 160, 176 N. W. 767; Clemens v. State, 176 Wis. 289, 309, 185 N. W. 209; Bahlert v. C., M. & St. P. R. Co. 175 Wis. 481, 185 N. W. 515; Twist v. M., St. P. & S. S. M. R. Co. 178 Wis. 513, 190 N. W. 449; Plantz v. C., M. & St. P. R. Co., ante, p. 126, 192 N. W. 381; Kanass v. C., M. & St. P. R. Co.,, ante, p. 49, 192 N. W. 383; Spencer v. Taylor, 219 Mich. 110, 188 N. W. 461, and cases there cited; [553]*553Philadelphia & R. R. Co. v. Dillon (Del.) 114 Atl. 62, 15 A. L. R. 901, note.

The case of Depouw v. C. & N. W. R. Co., twice appealed here (151 Wis. 109, 138 N. W. 42, and 154 Wis. 610, 143 N. W. 654), held that a verdict might be supported in plaintiff’s favor for injuries resulting from driving his team of horses in the darkness against the side of a train of flat cars on a crossing, but the substantial difference in the rule controlling accidents where the vehicle is horse-drawn and where it is an automobile is pointed out in Lauson v. Fond du Lac, supra.

By the Court. — Order reversed, and cause remanded with directions to sustain the demurrer.

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Eschweiler, J.

Wherein defendant may have breached any of its statutory or common-law duties towards the plaintiff is immaterial on this appeal because the complaint shows upon its face such want of ordinary care for his own safety on plaintiff’s part as requires holding, as a matter of law, that his contributory negligence must defeat any claim of right to recover.

Knowing of the track and highway crossing he drove his automobile on a very dark night into a standing freight train. With proper headlights on his automobile and driving with the degree of care the law requires of him, he should have seen and known of such obstruction in time to have avoided the collision. However liberally we are bound to and do construe the language of this complaint in an effort to sustain it as stating a possible cause of action, we are nevertheless compelled to hold that the demurrer should have been sustained. Such ruling is required by many decisions here and elsewhere. Lauson v. Fond du Lac, 141 Wis. 57, 60, 123 N. W. 629; Yahnke v. Lange, 168 Wis. 512, 515, 170 N. W. 722; Puhr v. C. & N. W. R. Co. 171 Wis. 154, 160, 176 N. W. 767; Clemens v. State, 176 Wis. 289, 309, 185 N. W. 209; Bahlert v. C., M. & St. P. R. Co. 175 Wis. 481, 185 N. W. 515; Twist v. M., St. P. & S. S. M. R. Co. 178 Wis. 513, 190 N. W. 449; Plantz v. C., M. & St. P. R. Co., ante, p. 126, 192 N. W. 381; Kanass v. C., M. & St. P. R. Co.,, ante, p. 49, 192 N. W. 383; Spencer v. Taylor, 219 Mich. 110, 188 N. W. 461, and cases there cited; [553]*553Philadelphia & R. R. Co. v. Dillon (Del.) 114 Atl. 62, 15 A. L. R. 901, note.

The case of Depouw v. C. & N. W. R. Co., twice appealed here (151 Wis. 109, 138 N. W. 42, and 154 Wis. 610, 143 N. W. 654), held that a verdict might be supported in plaintiff’s favor for injuries resulting from driving his team of horses in the darkness against the side of a train of flat cars on a crossing, but the substantial difference in the rule controlling accidents where the vehicle is horse-drawn and where it is an automobile is pointed out in Lauson v. Fond du Lac, supra.

By the Court. — Order reversed, and cause remanded with directions to sustain the demurrer.

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Bluebook (online)

193 N.W. 356, 180 Wis. 551, 1923 Wisc. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/worden-v-chicago-northwestern-railway-co-wis-1923.

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