Winchell v. Abbot

LyoN, J. Tbe only question argued by counsel, and tbe only one to be determined on this appeal, is, Does tbe special verdict support tbe judgment for tbe plaintiff? It is maintained by counsel for defendants that it fails to do so,, because (1) it estabbsbes tbe fact that tbe plaintiff was — 374 — guilty of negligence which, contributed directly to the injury she received; and (2) it demonstrates that the defendants exercised reasonable car‘e and diligence to avoid the injury. . 1. The first proposition is based upon the answer to the seventh question in the special verdict, which is that, had the plaintiff looked before she attempted to cross the railroad track, she could have seen the light from the headlight of the locomotive which ran against her: But the testimony tends to show that, because of the curve in the track (which defendant’s engineer testified is a sharp one), such light did not fall directly upon the plaintiff until the locomotive was very near the crossing. Also that there were trees and telegraph poles between the track and sidewalk, which to some' extent obscured her view of the track nearly to the crossing. It also tends to show that the plaintiff was not familiar with that portion of Division street. She had been there but a few times since the railroad was constructed, and not at all for two or three years before she was injured. She knew the railroad crossed the sidewalk .in that vicinity, but did not know the precise location of the crossing. Considering these circumstances, and, further, that the injury was inflicted at night and probably immediately after the plaintiff reached the track — presumably before she had time to realize the peril of her situation, or comprehend what she should do to avoid it,— it seems very clear that the question of her negligence, notwithstanding the seventh finding in the special verdict, was still a question of fact for the jury, and that they might properly find ' from the testimony that the case is an exception to the gen-bra! rule that a person approaching a railroad crossing must look and listen for trains,— stopping for that purpose under some circumstances,— before he attempts to cross, or he is negligent. See Phillips v. M. & N. R. Co., ante, p. 349. We conclude, therefore, that the finding which acquits the — 375 — plaintiff of negligence contributing to ber injury is supported by the testimony and should not be disturbed. 2. In running its locomotive across the sidewalk, did the ■defendants, under all the circumstances of the case, exercise proper care to avoid injuring the plaintiff? It is settled by the special verdict that the locomotive was running at the rate of six miles, an hour, and the bell thereon was being rung continuously before and while crossing the sidewalk. This was a compliance with the requirements of the statute in those particulars. R. S. sec. 1809. It is quite ■evident that neither the fireman nor engineer could have .seen the plaintiff on the sidewalk before the locomotive turned the curve, for the light from the head-light did not •fall upon her, and after that time it was doubtless impossible to stop the engine before crossing the sidewalk; Hence, if any fact is found in the special verdict which' charges the defendants with negligence, it is their failure to have at the crossing a light or flagman to warn the plaintiff of the approach of the locomotive. The jury found that such failure was negligence. On the authority of Heddles v. C. & N. W. R. Co. 14 Wis. 239, which is in accord with the great weight of authority elsewhere, the jury were not ■competent to determine that proposition. Many of the adjudications on the subject are referred to by Mr. Justice Cassoday in the opinion in that case. True, in Winstanley v. C., M. & St. P. R. Co. 72 Wis. 375, it is suggested in the opinion by Mr. Justice OnTONfhat the question of the obligation of a railway company to observe such extraordinary precautions in very dangerous places may be for the jury;' but, after a thorough examination of the subject in the Heddles Case, we all reached the conclusion that the question cannot properly be submitted' to the jury. The rule adopted in the latter case is clearly stated'in an extract there made from the opinion by Fmon, J., in Houghkirk v. D. & H. Canal Co. 92 N. Y. 219, which will bear' — 376 — repetition Rere. It is as follows: “ The fact [of the presence or absence of a flagman] may be proven as one of the circumstances under which the train was moved, and by which the degree of care requisite in its handling and running may be affected, so that the question never is whether there should have been a flagman, or one ought to have been stationed at the crossing, but whether, in view of his presence or absence, the train was moved with prudence or negligence.” Although, in the above case, the question related only to the employment of a flagman, yet, manifestly, the same rule applies to any case in which it is claimed the railway company ought to maintain, at highway crossings, any extraordinary precautions, not specially required by statute, for the protection of travelers on such highways. It follows that no weight can properly be given to the finding that the failure of defendants to have a light or flagman at the sidewalk crossing, to warn plaintiff of the approach of the locomotive, is negligence; but there still remains a finding that such failure caused the injury to the plaintiff. Such is the obvious effect of the first and second findings in the special verdict, considered together; that is to say, the jury found therein two facts: (1) That the failure to have at the crossing either a light or flagman to warn plaintiff of her danger caused the injury complained of; and (2) that such failure was negligence. The jury were competent to determine the first proposition; hence the fact thus found is a verity in the case. The finding of the other proposition is, as we have. seen, ineffectual for any purpose. Hence, there is no sufficient authorized finding in the special verdict that the defendants were guilty of negligence which caused the injury. But there is another feature of the casé which, in our opinion, supplies the defect in the verdict. The undisputed evidence proves that the sidewalk crossing was a peculiarly dangerous one, especially to the plaintiff, who, burdened — 377 — with packages, was passing over it in the darkness of the evening, going in the same direction with the locomotive, Without any accurate knowledge of the exact location of the track. Her only protection from injury was the watchfulness of the engineer and fireman on the locomotive, and, by reason .of the trees, telegraph poles, and curve in the track, their vigilance was entirely inadequate to protect her. It is clear that, in view of these conditions, it was the duty of the defendants to provide some other means to secure her safety. Because they failed to do so the plaintiff was injured, for it is a verity in the case that she was in the exercise of proper care. Such failure is negligence, and, the negligence being conclusively established, the court properly may, and should, base its judgment upon the existence thereof, although there is no valid finding to that effect in the special verdict. Such is the rule in this state firmly established by many adjudications of this court. In the Heddles Case it was not conclusively proved that it was the duty of the railway company to provide any additional precautions for the safety of travelers on the crossing. This fact distinguishes that from the present case. The jury found that the absence of a fight or flagman on the crossing caused the injury complained of. These were probably named because they are the usual appliances in such cases. Doubtless the use of other precautions instead, equivalent to these, would fulfil all legal requirements. By the Cowrt.— The judgment of the circuit court is affirmed. Oassodat, J. The finding of the jury as to the defendants’ negligence should be construed and considered in connection with all the undisputed facts and circumstances in the case. Stilling v. Thorp, 54 Wis. 536, 537. When so construed and considered, the finding of the defendants’ negligence seems to be sustained. The mere fact that one — 378 — of the findings is to the effect that the defendants’ négli-gence consisted in the absence of a light or flagman did not destroy the force of the other undisputed facts and circumstances as evidence; and hence the finding of the. defendants’ negligence is sustained by , the evidence, and the judgment is properly affirmed.