Heath v. Stewart

Winslow, J. The important contentions made by the appellants are that the evidence shows that the plaintiff Avas guilty of contributory negligence, and that the evidence and verdict show that the defendants were not negligent. These questions may properly be considered together, and their consideration requires a brief revieAV of the evidence. The hamlet of Spencer, Avhere the accident happened, is an unincorporated village in Marathon county, with a .population of from 500 to 600 people, and the railroad operated by the defendants runs through it in a general northerly and southerly direction. Clark street is the principal street of the village, and runs due east and Avest, crossing the railroad track about 300 feet north of the defendants’ passenger station. There are four railroad tracks crossing Clark street, about thirty feet distant from each other, and all crossing at a more or less acute angle. Beginning at the west, these tracks are called the SAvitch track, the passing track, the main track, and the station track. Erom 100 to 125 teams cross these tracks daily on Clark street, the principal travel being from 10 o’clock A. M. to 4 o’clock P. M. The plaintiff Avas a farmer and teamster, Avho lived about tAvelve miles from Spencer, and on the day of the accident he had been engaged to drive a four-mule team attached to bobsleighs loaded with a heavy load of hardwood lumber and timber to the depot at Spencer. The team and load together were more than forty feet in length. He arrived at Spencer a little before 1 o’clock P. M., drove into Clark street, and approached the railroad crossing from the west. There were two obstructions interfering with a northward view of the railroad tracks. These obstructions Avere Bres423 nahan’s saloon and a bos car which was standing on the switch track, both being on the north side of Clark street. The former is a frame building, twenty feet wide, fronting ■due south, standing close to -the right of way and about thirty feet distant from the switch track and the box car. The box car stood partially within the limits of the street, its south end being close to the traveled track of Clark street. From the box car to the passing track the distance was less than thirty feet, and, as before* stated, from the passing track to the main track was about thirty feet. There is considerable evidence tending to show that there were piles of staves and lumber standing west of the track and north of Clark street, which would interfere to some extent with the sight of a train coming from the north. The plaintiff testifies that he did not know which of the four tracks was the main track. A man was driving another team, with a load of lumber, ahead of the plaintiff, and according to the plaintiff’s testimony he (plaintiff) stopped his team when his mules were in front of Bresnahan’s saloon, to look and listen, and to give the man ahead a chance to cross. Plaintiff also testifies that the man ahead hollered back to him that they were late, or that the train had gone. After looking and listening, the plaintiff started his team towards the tracks at the rate of two or three miles an hour, and passed the saloon and the box car. He testifies that he ivas standing on the front end of the load; that after passing the box car he looked up and down the track for trains; that he heard no signals; and that when his leaders were on the main track he first saw the train approaching rapidly from the north. What the plaintiff did at this time is not very certain. He himself cannot tell with any degree of certainty. He seems to have struck his mules with the whip in an endeavor to get the load 'across the track. He testifies that he jumped from the load. It is a fact, however, that the mules got across the track in safety. The engine [424] pilot struck the load just back of the front sled. The lumber was scattered along the west side of the track for some distance, and the plaintiff was picked up thirty feet or more south of the place of collision, and about the same distance west of the main track, seriously injured. The engineer of the train did not see the plaintiff’s team until the engine was about 100 or 150 feet from them, when he reversed the engine. The train was the regular southbound train, due at Spencer at 1:03 P. hi., and seems to have been on time, and was to stop at the station. Its speed between stations was about thirty-five miles an hour. Its speed at the time when the engine was reversed was variously estimated by the witnesses, some of whom placed it as high as thirty-five miles an hour, being the speed which the jury found. There was another street crossing about 250 feet north of Clark street, and there was testimony tending to show, as the jury found, that the engine whistle was blown but once on approaching Clark street. The day was cold, and the plaintiff had some muffling about his head and ears, but he. claims that it did not impair his hearing. This statement, though incomplete, covers, we think, all the facts necessary to be stated in passing upon the two questions which we are considering. In support of the contention that the plaintiff’s own evidence shows him to have been guilty of contributory negligence, much reliance is placed on the case of Nelson v. D., S. S. & A. R. Co. 88 Wis. 392, and it is argued that the cases are substantially alike. "We do not so regard the two cases. In the Nelson Case it appeared that the plaintiff was approaching a single railroad track, where he knew trains were to be expected at any time. He stopped for a little time in front of a building near the track which cut off his view of the track entirely, and then drove out towards the track, from twelve to fourteen feet, without looking. In that case it was said that the case was not like a case where [425] one was advancing steadily along a street, and Ras Ms view momentarily cut off by a budding, be having looked before be passed behind the building. The present case is complicated with numerous circumstances which were not present in the Nelson Case, and which must be considered in judging of the plaintiff’s conduct. In this case the plaintiff, was approaching, with a very long and unwieldy team and load, four separate railroad tracks, with which he was not familiar, on any one of which, so far as he knew, a moving train might be expected as well as upon another. He stopped to look and to listen at the last place where he could obtain a. view to the northward before commencing to cross the tracks. It is said that he did not look to the northward at the very moment when he emerged from behind the box car, and that, if he had so looked, he would certainly have seen the approaching train before he arrived at a point eighteen feet from the main track. But it must be remembered that the plaintiff had his four-mule team to direct, and that he had also to watch for possible trains on four tracks in two different directions. He was not an unincum-bered foot passenger, but in charge of valuable animals and property. Possibly he did not see the train at the first moment possible' (although this is by no means clear), but we do not feel that we can say, under all the circumstances that surrounded him, that he failed to exercise ordinary care. Nor, on the other hand, can we say that the evidence fails to justify the jury in finding that the negligent handling of the train was the cause of the collision. The jury found that but one whistle was sounded, that the bell was not rung continuously, and that the train was run at an unnecessarily dangerous rate of speed, viz., at the rate of thirty-five miles an hour. They also found that all of these acts and omissions constituted a want of ordinary care on the part of the defendants, and that they were the proximate [426] cause of the accident. We think there was sufficient evidence to support all of these findings. It is undoubtedly true, as contended by the appellants, that the statute limiting the speed of trains in cities and villages to six miles per hour does not apply to this case, because the village of Spencer was an unincorporated village. R. S. sec. 4972, subd. 5. It does not result from this, however, that a railway train may be driven at any rate of speed that the engineer may choose across the streets of an unincorporated village. There will frequently be crossings whose surroundings will demand that the engine be driven slowly and carefully. It is argued that, there being no statutory limitation on the speed in the present case, there are no facts from which it can be properly found that the speed of the train in question was negligently high. We think the circumstances amply warrant the submission of the question to the jury. Here was a busy hamlet, whose main street crossed the railroad tracks of the defendants on grade. It was a frequently traveled street. The approach to the tracks was obscured by buildings, and at the time of the accident additionally ■obscured by the freight car which had been left standing partially in the street.' These facts all have a legitimate bearing on the question whether the speed of the train at the time was negligently high, and we cannot say that the finding of the jury in this regard is not- supported by the facts and circumstances of the case. Some minor questions are raised by the appellants, but we do not deem it necessary to discuss them. It is sufficient to say that we have found no errors in the record warranting a reversal. The case seems to have been fairly tried, and the findings of the jury are justified by the evidence and sustain the judgment. It is said that the damages are excessive, but we cannot so hold. Upon the whole record, the judgment is right and must be affirmed. By the Court.— Judgment affirmed.