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

Cassooay, J. As indicated in the foregoing statement, there is evidence tending to prove that at the time of the accident the train was from fifteen to twenty minutes behind its regular time. One of the plaintiff’s witnesses testified, in effect, that on the day of the accident he started from King’s steam-mill, on First street, in Watertown, with a load of feed, for his home, while the 1 o’cloch whistles were blowing¡ that he went on the street in question; that he passed the crossing, and met and passed the plaintiff at the foot of Koch’s hill; that he got up over the hill, and neither — 254 — heard nor saw anything of the train. Assuming the credibility of the witness, and the circumstances stated tend strongly to prove that the train was considerably behind the regular time. The evidence on the part of the defendant strongly tends to prove that the train left Ixonia at 12:50 p. m., and reached the place of the accident about 1 o’clock; but, of course, the jury had the right to believe the witnesses on the part of the plaintiff instead of those on the part of the defendant. There is also a considerable conflict in the evidence as to the speed of the train. The conductor testified that he ran from Ixonia to the crossing, a distance of six miles, in ten minutes,— that is to say, at the rate of thirty-six miles per hour,— which would be 900 feet in .seventeen seconds. Such a rate of speed within the limits' of the city was unlawful, and hence negligent. Sec. 1809, R. S.; Horn v. C. & N. W. R. Co. 38 Wis. 463; Ewen v. C. & N. W. R. Co. 38 Wis. 613; Haas v. C. & N. W. R. Co. 41 Wis. 44; Heddles v. C. & N. W. R. Co. 74 Wis. 239; Hooker v. C., M. & St. P. R. Co. 76 Wis. 542. Since such negligence contributed directly to the injury, it must be regarded as having established .the defendant’s negligence. But the principal controversy is whether the plaintiff was guilty of contributory negligence in driving upon the crossing as mentioned in the foregoing statement. The particular conduct of the plaintiff complained of is his failure to look in the direction of the coming train after reaching a point within fifty feet of the crossing. He testified that he did look in that direction when between fifty and sixty feet from the crossing; and other testimony tends to prove that, from the point where he so looked, he could have seen the train had it then been anywhere within at least 900 feet east of the crossing. The jury had the right -to believe that testimony, and evidently did. Assuming that testimony to be true, as we must on this appeal, and — 255 — it follows conclusively that while the plaintiff was passing over the fifty or sixty feet the train passed, over at least 900 feet; that is to say, the train was moving fifteen or eighteen. times faster than the plaintiff. This being so, it follows that if the plaintiff was moving at the rate of three or four miles per hour then the train must have been moving at the rate of from forty-five to sixty miles per hour. The conductor testifies that applying the air-brakes when a train is running at the rate of thirty-five miles an hour will stop the train in a distance of about 600 feet; that this train ran about 620 feet after the air-brakes were applied. Had the train been running upon the statutory time of six miles an hour while passing over the 900 feet, and the other conditions had remained as assumed, it is very evident that the plaintiff would not only have safely crossed the track before the train reached it, but would have reached a point some two or three hundred feet beyond. This court has held, in effect, that, where a traveler on a public street in a city approaches a railway crossing, and nothing appears to the contrary, he may properly assume that a train is moving at a lawful rate of speed, and if it transpires that such speed was unlawful that fact may be taken into consideration in considering the question of contributory negligence. Langhoff v. M. & P. du C. R. Co. 19 Wis. 489. The same rule has been sanctioned by other courts. Loucks v. C., M. & St. P. R. Co. 31 Minn. 526; Thomas v. D., L. & W. R. Co. 8 Fed. Rep. 732; Newson v. N. Y. C. R. Co. 29 N. Y. 383; Penn. R. Co. v. Ogier, 35 Pa. St. 72. This rule is really sanctioned by Allen v. M. C. R. Co. 19 Atl. Rep. (Me.), 105, cited by counsel for the defendant. It is claimed as a matter of law that the plaintiff was not excusable, upon any theory, from omitting to look eastward along the track after getting within fifty feet of it, ■since every step of the team forward enabled him to see for a greater distance in the direction of the approaching — 256 — train, and since bis horses were perfectly gentle and might have been stopped at any instant. But it is to be remembered that the plaintiff may have been lulled into a sense of security by thus failing to see the train when he did look, so that under all the circumstances stated we are unable to say, as a matter of law, that the momentary diversion of the plaintiff from looking in the direction of the coming train by reason of the conduct of his horses was not excusable. Butler v. M. & St. P. R. Co. 28 Wis. 487; Bower v. C., M. & St. P. R. Co. 61 Wis. 457; Ferguson v. W. C. R. Co. 63 Wis. 152; Winstanley v. C., M. & St. P. R. Co. 72 Wis. 375; Duame v. C. & N. W. R. Co. 72 Wis. 523; Kellogg v. N. Y. C. & H. R. R. Co. 79 N. Y. 72. In Penn. R. Co. v. Ogier, 35 Pa. St. 72, the evidence in support of the verdict against the claim of contributory negligence was weaker than in the case at bar, but the court said: “ The theory that the deceased might have seen 623 feet along the railroad in the direction in which the train was approaching, from a point at which he might have stopped the progress of his horse and escaped danger, but did not see it until within 174 feet of him, if considered abstractly, and entirely unshaken by any or every other consideration, would have presented a strong case of negligence; but even then it would scarcely have justified a court in saying there was negligence, as a matter of law, when but seventeen seconds were allowed for action to the party in danger.” The facts in the case at bar differ materially from those present in Allen v. M. C. R. Co. 19 Atl. Rep. (Me.), 105. The contention of the able counsel for the defendant to the effect that the plaintiff was guilty of contributory negligence for not looking eastward when forty-eight feet or less from the track, and from a point where he might have seen the train approaching anywhere within 1,235 feet of the crossing, is peculiarly applicable to the engineer and — 257 — fireman operating the train, and of course, in law, equally to the defendant. • It was a part of their .duty to keep a lookout in the direction they were going, especially while passing over streets in a city at such a rate of speed. Heddles v. C. & N. W. R. Co. 74 Wis. 247. They could have stopped the train at any time, by applying the air-brakes, in a distance of 600 feet, even when running at the rate of thirty-six miles an hour. There is no evidence that their attention was diverted by anything. Had they looked, they certainly could have seen the plaintiff and his team approaching the track for the distance named; and yet, am cording to the testimony of the plaintiff, they neither gave any signal nor stopped the train, and, according to the conductor, they did not apply the air-brakes until “right near-the crossing, possibly right on it.” We must hold that there is sufficient evidence to support the verdict, and consequently that there was no error in refusing to nonsuit the plaintiff or direct a verdict in favor of the defendant, or to set aside the verdict for want of evidence. What has been said above, and the authorities cited, fully dispose of the real controversy on this appeal, and also of the first, second, fifth, sixth, and seventh assignments of error in the charge. Error is also assigned to that portion of the charge wherein the jury were, in effect, told (3) that although the statute did not require the defendant to blow the whistle at the whistling post, or at any place between it and the crossing, still, if those in charge of the train saw the plaintiff approaching the crossing and about to go upon the track, believing that he was unaware of the train’s approach, it would be their duty to sound the whistle as well as to take every other reasonable precaution to prevent the collision. This portion of the charge is fully sustained by the recent ruling of this court in Heddles v. C. & N. W. R. Co. 74 Wis. 248, 249. Error is also assigned to that portion of the charge — 258 — wherein the jury were, in effect, told (4) that it was the peculiar province of the jury to decide whether the whistle was blown at the whistling post, or the engine bell rung before and while passing over the crossing in question, as well as the rate of speed at which the. train approached the same. We perceive no error in submitting such questions to the jury, when taken in connection with the whole charge, which was fair to both parties and covered the whole case. By the Oourt.— The judgment of the circuit court is affirmed.