Johnson v. Lake Superior Terminal & Transfer Co.

Pranrarv, J. 1. At the time the accident occurred the defendant was running its locomotive, attached to and'drawing a train of five or six cars, rear end in front, so that the engineer and fireman were not able to keep a reasonably vigilant lookout along the track in the direction the train was moving,— a somewhat unusual method of operating the train, though quite common, perhaps, in switching yards,— and it afforded sufficient reason for keeping a lookout different from, and in addition to, that practiced by the engineer and fireman when the locomotive is run right end in front. The train was being operated over the private premises of the defendant, but by its license and acquiescence, quite clearly proved, the public were in the habit, to a very considerable extent, of passing and repass-ing over and along the track and between the rails at the point where the injury occurred. The company, by its license and acquiescence, had lost the right to treat persons so passing as trespassers, for whose safety it would be answerable only in' case of gross negligence; and by repeated decisions in this state it is well settled that a railroad company must provide for a careful lookout in the direction in which the train is moving, in places where people are liable or likely to be on the track, and especially children. The rule exists in the case of adults as well as children, and the failure to keep such lookout is negligence, as a matter of law. The instruction excepted to was clearly justified by the evidence, which showed that practically no lookout was kept in the direction the train was moving, on account of the reversed position of the locomotive. After having licensed the use of its grounds by pedestrians for a way, the defendant was not entitled to ignore their actual or [71] probable presence on tbe track, and operate its’train accordingly. The changed condition growing out of the licensed use of its grounds and tracks devolved on it the duty of keeping a lookout and signaling the approach of its cars to persons in positions of danger. Townley v. C., M. & St. P. R. Co. 53 Wis. 634; Davis v. C. & N. W. R. Co. 58 Wis. 653; Whalen v. C. & N. W. R. Co. 15 Wis. 659, 662. The pedestrian passing and repassing along a track under such circumstances, it must be admitted, occupies a dangerous position; but he has a right to assume that the company will discharge its duty arising out of the circumstances and the relation which the parties occupy towards each other, and that it will not, by its negligence, expose him to, or inflict on him, any injury. 2. The question whether a verdict should have been directed for the defendant on the grouncl that the plaintiff was guilty of contributory negligence as a matter of law, or whether, under the evidence, it was a question of fact for the jury, is one of more difficulty. Generally, what is and what is not negligence is a question for the jury. It is not a fact to be testified to of itself, but a deduction or inference from the facts and circumstances in evidence. When the standard of duty is a shifting one, a jury must determine what it is, as well as find whether it has been complied with. If unbiased men would differ as to the inferences to' be drawn from the facts and circumstances, then these inferences cannot be made without the intervention of a jury, although all the witnesses agree' in their statements, or there be but one statement which is consistent throughout; and in all cases in which such inferences are in doubt, giving to the testimony .the construction most favorable to the party charged therewith, the question of negligence is for the jury. Valin v. M. & N. R. Co. 82 Wis. 6; Hill v. Fond du Lac, 56 Wis. 242; Nelson v. C., M. & St. P. R. Co. 60 Wis. 323; Langhoff v. M. & P. du C. [72] R. Co. 19 Wis. 496. And many other cases might be cited .in this and other courts to the same effect. The proof of contributory negligence, in order to warrant an absolute direction to find for the defendant, must be clear and decisive,— not leaving room for impartial and unbiased minds to arrive at any other conclusion. Applying these familiar principles to the facts in evidence, and giving the facts the construction most favorable to the plaintiff, as we are bound to do, it is clear, we think, that the question of contributory negligence in this case was not one of law for the court, but one of fact for the jury. It cannot be said that there was an entire absence of care and caution on the part of the plaintiff. He did exercise certain care and precaution. It is said that he did not look and listen, did not employ the evidence of his eyes as well as his*ears, to avoid danger; and the absolute and rigid rule requiring a party about to cross or go upon the track to both look and listen in order to ascertain the presence or approach of a train is invoked. But the plaintiff knew by sight, and hearing as well, that the train was on the switch track, for he met it on its way north, and he supposed it was going up to the smelting works, quite a distance, at the end of the track. If it was not going at a greater rate than three or four miles an hour on its return south, can it be said, as a matter of law, that the plaintiff was guilty of negligence,, in that'he merely listened for the train, expecting it would return, and walked a distance of about ninety feet before he looked again, supposing and believing, as he says, that it was far up the track? When he last looked, he says it was at least 300 feet distant from him. Certainly, in walking south on the track, he could not be expected to keep his eyes constantly to the north, and upon the locomotive. To have done so might have exposed him to like injury in the opposite direction. The requirement to look and listen does not nec [73] essarily mean that a party thus circumstanced must look all the time at the locomotive in question. The degree of care demanded by the situation would not necessarily require this, nor do we understand that the rule goes to any such extent, or that after the party has discovered and located the train he shall do more than exercise that degree of care and caution fairly indicated by the situation. The question of negligence thus ceased to be an absolute, and became a relative, one, in this case; and so the question was necessarily one for the jury to say whether he looked often enough, under all the circumstances, as he had understood and had observed them. Assuming that the locomotive was 300 feet north of him when he started south down the track, and that he traveled at a fair walk for twenty or thirty seconds without looking again, and if the train had started south when he saw it, it would have to run 390 feet before it could overtake and strike him, or at the rate of about eight miles an hour,— a rate believed to be unusual in doing switching,— yet he was all the time exercising some care and caution, by constantly listening and expecting to hear its bell. Had he any right to expect that the defendant would employ so high and unusual a rate of speed, in view of existing circumstances? The case is distinguishable from Schmolze v. C., M. & St. P. R. Co. 83 Wis. 659, in that in that case the plaintiff exercised no care or caution whatever when he entered upon the tracl? of the railway. The case of Whalen v. C. & N. W. R. Co. 75 Wis. 654, in which the question of the plaintiff’s negligence was held to have been properly submitted to the jury, is in many respects similar to the present, but it was not decided in that case that if the plaintiff had been an adult the case ought not to, have gone to the jury. Each case necessarily stands upon its own particular facts and circumstances, and the jurjq who saw the plaintiff and heard his testimony and the testimony of other witnesses, [74] were best able to determine the degree of diligence which ought to have been required of the plaintiff in the present case, as well as the proper inferences to be drawn from the testimony. The evidence of negligence on the part of the plaintiff was not clear and decisive, not leaving room for impartial and unbiased minds to come to any other conclusion. For these reasons,' and under well-settled rules, we think the question of contributory negligence was one of fact and properly left to the jury. 3. Rut little need be said in respect to the refusal of the court to set aside the verdict of the jury as being contrary to evidence. The granting or refusal to grant such a motion, where there is evidence which tends to support the verdict, as in this case, is a matter resting in the sound discretion of the trial court; and we cannot interfere unless such discretion has been abused, or where, as a matter of law, upon the entire case the verdict cannot be allowed to stand. In view of the fact that the trial court had advantages of judging whether, upon the whole case, justice had been done, which this court does not possess, the case which would induce this court to interfere with the decision of the circuit court overruling a motion for a new trial, resting in discretion, must be of a strong and exceptional character. The evidence does not furnish such a case. It follows from these views that the judgment of the circuit court is correct and must be affirmed. By the Oourt. — The judgment of the circuit court is affirmed.