#### Depow, Respondent, vs. Chicago & Northwestern Railway Company, Appellant.

*October 11*

October 29, 1912.

*Railroads: 'Negligence: Obstructing street crossings: Municipal ordinance construed: Injury to traveler on street at night: Damages: Evidence: Opinions of experts: Excessive award: Appeal: Reversal: When new trial ordered.*

1. A municipal ordinance prohibiting railroads from obstructing the streets with their engines or cars, without naming a time limit within which cars may remain upon a crossing, is construed as not having been intended to interfere with the ordinary usual and careful operation of railroad trains, but merely as prohibiting unnecessary stops upon street crossings, or the continuation of a necessary stop for an unreasonable or unnecessary time.

2. Opinions of experts as to whether plaintiff’s present physical condition was caused by the injury complained of, and as to the extent of his disability, are not absolutely binding upon the court.

S. In an action for personal injuries, where a judgment for plaintiff is reversed solely upon the ground that the damages awarded are excessive, this court will ordinarily name a smaller sum which the plaintiff may accept and terminate the litigation.

4. But, in an action for injuries sustained through driving a team of horses against a train of cars standing at night on an unlighted railroad crossing, it appearing not only that the award *110of $9,500 is much too large, hut also that the evidence tending to establish defendant’s negligence is very uncertain and unsatisfactory, the judgment is reversed and the cause remanded for a new trial.

Appeal from a judgment of tbe circuit court for Oconto county: S. D. HastiNgs, Circuit Judge.

*Reversed.*

*Edward M. Smart,*for tbe appellant.

Eor tbe respondent there was a brief by *Olasson <& O’Kellv-her,*and oral argument by *D. O. Olasson.*

Timlin, J.

Tbe plaintiff, traveling at nigbt on tbe street,, drove bis borses against tbe side of a train of flat cars standing on a railroad crossing and was thereby injured. He was-riding with bis wife in a sleigh drawn by a team of borses and going west. There were several railroad tracks on this crossing and switches north and south of tbe crossing. Tbe crossing was in a depression in tbe street of three and one-half feet, in a distance of 183 feet. A flagman was kept at this crossing in tbe daytime and an electric light at nigbt. This electric light was maintained by an electric light company by contract with tbe city 'and paid for by tbe railroad company. On tbe nigbt in question tbe electric lights in tbe city of Oconto were out by unavoidable accident. An ordinance of tbe city of Oconto was introduced in evidence, tbe first section of which is as follows:

> “Section 1. All railroads are hereby prohibited from obstructing tbe streets of tbe city of Oconto with their engines or cars, but tbe standing of cars or engines of a passenger train on tbe street during tbe usual and necessary stoppage of' tbe train at a station, shall not be deemed an obstruction within tbe meaning of this ordinance.”

Tbe scope and meaning of this ordinance was not discussed by counsel or explained to tbe jury. There are no exceptions, to tbe instructions given to the jury and no requests for instructions. But there was a motion to set aside tbe verdict-on tbe ground of excessive damages, which was denied and. *111an exception taken. Tbe jury awarded damages in tbe sum of $9,500. Tbe plaintiff bas no visible wounds, bruises, or injuries. He suffers from nervousness, shortness of breatb, excessive and irregular heart action, and a tendency to perspiration. It is undisputed-that aside from this be possesses a very excellent physique and fine muscular development. It is asserted that be bas enlargement of tbe heart.

Tbe fact that bis present condition was caused by tbe collision with tbe car standing on tbe crossing and the extent of bis- disability rest upon tbe opinions of experts. Such opinions are not absolutely binding upon the court. *Bucher v. Wis. Cent. R. Co.*139 Wis. 597, 120 N. W. 518. We are satisfied that tbe damages awarded are at least double what they ought to be on tbe evidence. Ordinarily this would result in reversing tbe judgment and naming a sum which tbe plaintiff may accept and terminate tbe litigation. *Lehman v. Amsterdam C. Co.*146 Wis. 213, 131 N. W. 362; *Beach, v. Bird & W. L. Co.*135 Wis. 550, 116 N. W. 245. But in tbe instant case tbe evidence tending to establish defendant’s negligence is so uncertain and insufficient that we have decided to remand tbe cause for a new trial on tbe merits. Tbe usual statute or ordinance relating to tbe obstruction of tbe highway crossings by trains fixes a time beyond which the crossing shall not be obstructed, usually five minutes. There is considerable variety of expression, of course, but tbe nature of tbe subject almost requires that a time be fixed if tbe statute or ordinance make any change in what we may call tbe common law. Under our statutes a railway company bas a right to use tbe street on which its tracks are lawfully laid for legitimate purposes, but it bas no right to leave its cars standing upon tbe street for an unnecessary and unreasonable length of time. *Fay v. M., St. P.*& *S. S. M. R. Co.*131 Wis. 639, 111 N. W. 683; *Evans v. C., St. P., M.*& *O. R. Co.*86 Wis. 597, 57 N. W. 354; *Bussian v. M., L. S. & W. R. Co.*56 Wis. 325, 14 N. W. 452; *Janesville v. M. & M. R. Co.*7 Wis. *112484; *Crowley v. C., St. P.,*M. *& O. R. Co.*122 Wis. 287, 99 N. W. 1016. This is a very general form of statute which fixes the time beyond which the crossing must not be obstructed at five minutes. *Hinchman v. P. M. R. Co.*136 Mich. 341, 99 N. W. 277; *Comm. v. B., B. & G. R. Co.*135 Mass. 550; *Ill. Cent. R. Co. v.*State, 71 Miss. 253, 14 South. 459.

It may have been that the jury understood from the .ordinance in question that a freight train could not stop upon a crossing at all. The proper construction of the ordinance in .question is that the obstruction therein mentioned relates to an unnecessary stop upon a highway crossing or a necessary stop prolonged for an unreasonable or unnecessary length of time. It cannot be presumed that the ordinance was intended to interfere with or prevent the ordinary usual and careful operation of railroad trains. There is no proof in the case that this stop was unnecessary or that it continued for an unreasonable time. The utmost limit of time fixed by the plaintiff’s proof is five minutes, although he does say, once or twice, “five or six minutes.” The substance of his testimony, however, is to the effect that a certain church is about a quarter of a mile east of this crossing and that he could see the crossing from the time he arrived at that church until he reached the crossing, and that no locomotive passed over it during that time. He drove his horses part of the way on a walk and part of the way on a trot, and estimates that in this way he proceeded at the rate of three miles an hour, or a quarter of a mile in five minutes. The distance of a quarter of a mile is estimated, the rate of speed is estimated, and the time is estimated. The estimate of the rate of speed is very low and conflicts with common experience. On the other hand, the members of the railroad crew testify that the stop was made for the purpose of sending a man ahead to ascertain whether a certain sidetrack upon which they intended to go was clear of cars. To ascertain this the messenger had to travel about 150 feet and return. Some of the *113persons in tbe cab saw tbe collision and it occurred before tbis messenger reached bis destination and witbin two minutes from tbe time tbe train stopped. So we have on one band a claim tbat tbe train was stopped on tbe crossing for five minutes, and on the other band a claim tbat it was stopped on tbe crossing for two minutes, and no evidence tending to show tbat whatever tbe time was it was unnecessary or unusual or different from tbe ordinary mode of operating railroad trains. Tbe fact tbat this crossing was witbin tbe switching precinct must be taken into consideration. It may be tbat ordinary care would require tbe defendant’s employees in charge of tbe train to notice tbat tbe electric light was ■out at tbe crossing and to send back one of their number with a lantern to stand on tbe flat car which was on tbe highway crossing. But tbis aspect of the case was not submitted to tbe jury or tried. Tbe train consisted of a locomotive and tender, a string of flat cars, and a caboose at tbe end. Tbe ■operating crew consisted of a fireman, engineer, two brakemen, and a switchman or foreman. Tbe latter was at tbe rear of tbe train, tbe fireman and engineer in tbe cab, tbe ■other brakeman was sent ahead for tbe purpose mentioned, and tbe whereabouts of one is not accounted for. Tbe train was pulled across tbis street crossing so tbat tbe rear of the tender was about two car lengths south of tbe crossing and tbe third car stood on tbe crossing. Whether ordinary care would have required tbe stoppage of tbe train on tbe north side of tbe crossing and sending tbe brakeman a further distance ahead we cannot say. Tbis aspect of tbe case was not tried. Much (but not all) would depend upon proof of tbe usual and ordinary mode of operation under like circumstances. It seems to ns clear from tbe construction of tbe crossing with reference to tbe location of switches and sidetracks tbat it was intended tbat switching should be carried on over and upon tbis crossing, and switching cars requires stopping and also back and forward movement.

Nothing that is said in this opinion is to be taken as' sug*114gesting tliat there was or was not in fact negligence on the part of either the plaintiff or defendant, but merely as pointing out the unsatisfactory manner in which the case was tried and giving reasons for the departure from the usual disposition in this court of like cases.

*By the Court.*— Judgment reversed, and the cause remanded for a new trial.