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

The following opinion was filed November 15, 1892: Lyon, C. J. We cannot uphold the judgment of the circuit court from which this appeal is taken. The testimony of the plaintiff proves conclusively that he was guilty of negligence which contributed directly to the injury of which he complains. The sawmill was running when plaintiff started for the store, and continued to run until — 663 — be was injured. The noise made by it interfered, or was liable to interfere, with bis bearing an approaching train. This fact increased bis obligation to make use of bis eyes when be went upon the track, and while on it, to ascertain if a train was approaching him. He was walking slowly (as he estimates it, two or two and one half miles per hour), and nothing was transpiring there to distract his attention from a proper consideration of the dangers of the situation. A glance to the north up the track, as he approached it, or during most of the time he was walking between the rails, would undoubtedly have disclosed to him the presence of the approaching locomotive, and enabled him to escape injury. Several persons at' the sawmill, and others on the platform at the store, saw the locomotive approaching the plaintiff in time for him to have easily got out of the way of it had he also then discovered it; and those upon the platform tried to warn him of his peril, but without success. He walked slowly a distance of from fifty-six to seventy feet, a portion of it between the rails, with his back partly to the north (from, which direction the locomotive approached), entirely unconscious of probable danger, and without even taking the easy precaution to look along the track in that direction to see if a train or locomotive was approaching. Under many decisions of this court this was a want of ordinary care on his part. That such negligence contributed directly to the injury complained of cannot be doubted. It is not a sufficient explanation of, or excuse for, such negligence that plaintiff supposed no regular train would pass Harshaw at that hour. A person crossing the main track of a railroad must take notice that trains are liable to be passing at any time, and must listen and look for them if he would fulfill the requirements of ordinary care. If he knows that a train is due there at the time, it intensifies his negligence if he fails to listen and look for it, but — 664 — be is still guilty of a want of ordinary care if he fails to do so, although he does not expect a train at that particular time. In some comments upon the case of Duffy v. C. & N. W. R. Co. 32 Wis. 269, found in the opinion in Seefeld v. C., M. & St. P. R. Co. 70 Wis. 216, weight is given to the fact that in the former case there was no proof or claim that the injured party knew or had reason to believe that a train would probably pass the crossing at about the time he attempted to do so. This was mentioned as an additional reason why it was held in that case that the requirements of ordinary care did not make it the duty of such party to stop his team, leave his wagon, go upon the railroad track, and look along the same for a train. The same circumstance was mentioned by Mr. Justice Orton in the opinion in Winstanley v. C., M. & St. P. R. Co. 72 Wis. 375, as excusing extraordinary precautions against danger. In that case the injury was inflicted at the crossing of a mere private way over a spur track. Put in neither of those cases, nor in any other case determined by this court, so far as .we are' advised, has it been held that a person having his eyesight, who attempts to walk across or between the rails of the main track of a railroad, with nothing to obstruct his view of the track or divert his attention from the conditions surrounding him, is excused from looking along the track for approaching trains or locomotives, merely because he does not expect a train, or because no regular train is due there at that time. Failing to use this easy, simple, and natural precaution against accident, of looking along the track, he fails to exercise ordinary care, and, if injured on the track by a passing train, his own negligence contributes directly thereto, and he cannot recover damages of the railway company for such injuries. The undisputed testimony brings this case fairly within the rules determined in the cases of Rothe v. M. & St. P. — 665 — R. Co. 21 Wis. 256; Delaney v. M. & St. P. R. Co. 33 Wis. 67; Williams v. C., M. & St. P. R. Co. 64 Wis. 1; Seefeld v. C., M. & St. P. R. Co. 70 Wis. 216; Schilling v. C., M. & St. P. R. Co. 71 Wis. 255; Sehoenfeld v. Mil. City R. Co. 74 Wis. 433. In numerous other oases in this court, in which it has been held that the question of contributory negligence was, under the testimony therein, for the jury, the rules laid down in the cases above cited are reaffirmed. The same rules prevail generally in other states. We shall not attempt to cite the cases, and will only refer to a very late one decided by the supreme court of Pennsylvania, in which the doctrine of the above cases is vigorously asserted and applied. Myers v. B. & O. R. Co. 150 Pa. St. 386. By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial. Upon a motion for a rehearing there was a brief for the respondent by Bump & Kreutzer, and a brief for the appellant by Burton Ramson. The following opinion was filed January 10, 1893: Lyon, C. J. The judgment herein for the plaintiff was reversed because the undisputed evidence proved conclusively that he was guilty of negligence which contributed directly to the injury of which he' complains. The plaintiff now moves for a rehearing, and alleges in support of his motion that the testimony was sufficient to send to the jury the question whether, by the exercise of reasonable care and prudence, the engineer in charge of the locomotive which ran upon and injured the plaintiff might have avoided the consequences of plaintiff’s negligence. If the testimony was sufficient for that purpose, it is claimed that the jury must be presumed to have found that, had the engineer exercised proper care, the plaintiff would not — 666 — have been injured, and that under the rule laid down by this court in Valin v. M. & N. R. Co. 82 Wis. 1, the verdict and judgment should not be disturbed, notwithstanding the negligence of plaintiff. As this point is not discussed in the opinion reversing the judgment, it is proper, on this motion, to refer to it. The locomotive was not going at an undue rate of speed, and no statute required the engineer to sound a signal when he passed through Harshaw. lie saw plaintiff approach the track with the apparent intention of crossing it. He had the right to asfeume that the plaintiff would cross the track and not attempt to walk along the track between the rails. There was abundant time for him to cross before the locomotive could reach him. The engineer had the right to assume, further, that the plaintiff knew the locomotive was approaching him. Under these circumstances it was not negligence on the part of the engineer that he drove his locomotive at the rate of speed it was moving, or that he gave no danger signal until the unexpected intention of plaintiff to remain upon the track became apparent. It was then too late to avoid the accident. It is quite difficult to find enough in the testimony to send the question of the negligence of the engineer to the jury. It is more difficult, if not impossible, to find testimony which warrants submitting to the jury the question whether the exercise of reasonable care by the engineer might have avoided the consequences of plaintiff’s negligence. Hence, if such a finding is essential to sustain the verdict, we think the verdict cannot be upheld. Each action for the consequences of negligence must be determined on its own facts, and two cases are seldom so nearly alike in their facts that one of them can be said to rule the other, as to the law applicable to it. For example, the material facts in the Valin Case are essentially different from the facts in this case, and require the application of different rules of law thereto. — 667 — It should further be observed that, conceding the defendant railway company is chargeable with negligence, it is very doubtful whether the rule of the Valin Oase has any application to it. We will not determine the point here, but will say in regard to it that there is great force in the 'ruling in O'Donnell v. M. P. R. Co. 7 Mo. App. 190, to the effect that the rule under consideration rests upon the principle that where the defendant, by the exercise of, ordinary care, might have averted the consequences of the plaintiff’s negligence, the negligence of the latter became thereby remote, while that of the defendant becomes the proximate cause of the injury. Rut the case further holds that if (as here), “ up to the very moment of the injury the negligence of the plaintiff mingles, as an efficient and equally operating cause, with the negligence of the defendant,” the case should be taken from the jury. This rule would seem especially to commend itself to favorable consideration in a case where, as in this case, the conduct of the defendant has not been wanton, nor his negligence gross, and the defendant has no time, after he discovers the negligence of plaintiff, to adopt additional precautions against injury. By the Court.— The motion for rehearing is denied, with $25 costs.