Groesbeck v. Chicago, MilwauKee & St. Paul Railway Co.

WiNslow, J. It will be seen from the foregoing statement that the present case is quite similar in its facts to the case of Haetsch v. C. & N. W. R. Co. 87 Wis. 304. In both cases there was sufficient evidence to establish negligence on the part of the defendant. In both cases the deceased was seated — 509 — in. a wagon, approaching a railroad crossing with which he was familiar, in the night, a few minutes after a train was •due, and was run down by an engine bearing a burning headlight which could be seen by the deceased at some distance from the crossing, had he looked; and in both cases no one lived to tell the tale or explain how the wagon came to be on the track at that moment. It is claimed, however, that there are radical differences between the two cases which call for the application of a different rule in the present case from that applied in the Haetsch Case. The material differences claimed to exist between the Haetsch Oase and the case at bar may be stated as follows: (1) The accident in that case occurred at a place where there was no restriction on the speed of trains, whereas in the present case the speed of the train was restricted by law to fifteen miles an hour after it crossed the center of the highway. (2) In that case there was no fog to obscure the vision. (3) In that case it appeared that the deceased was striking his horse, thus showing that he had seen the train and was trying to clear the crossing in advance of it; while in this case there is no evidence of the conduct of the deceased just prior to the collision. (I) In that case the deceased was far more familiar with the crossing than was the deceased in this case. (5) In. that case there was a clear view of the approaching train for at least 100 feet, while in this case there was such view for only about forty-five feet. All but the first of these alleged differences substantially disappear upon close examination of the evidence. Though the evidence shows that the night was foggy, it shows also that the fog was not such as to materially obscure the vision; certainly that the fog was not sufficient to prevent a traveler in the situation of the deceased from plainly seeing the headlight of the locomotive at any time after the engine came over the crest of the hill. This evidence came almost entirely from the witnesses for the plaintiff, who testify to having — 510 — plainly seen the lights shining from the windows of the train at the time of the accident at various distances running from forty rods to half a mile; one even testifying that he was standing on the platform of the depot at Elkhorn, and saw the headlight as the engine appeared on the crest of the hill,, more than a mile and a half away. It is true that there was testimony in the Haetsch Oase' from the fireman of the engine to the effect that he saw the deceased whipping his horse, apparently in order to get across the track before the train; but it will be seen from the opinion on page 308, 87 Wis., that this fact was substantially eliminated from consideration in determining the question of the negligence of the deceased. The case was decided without reference to that fact. As to the familiarity with the crossing, the difference between the two cases is not substantial. In the Haetsch Case the deceased had passed over the crossing far more frequently, but it affirmatively appears in the present case that the deceased was entirely familiar with the road over which he was traveling. He had been a resident of the county for years. He had lived on the farm where he lived at the time of his death nearly two months. From this farm the railroad (though not the crossing) was in sight. His route to Elkhorn, the nearest trading town, was over this road, and he had used it half a dozen times, and on the very trip in question he had said before he left home that perhaps he might wait at Elkhorn until this very train came in. It is idle to claim that he was not perfectly familiar with the road, the crossing, and the train. As to the view of the train which a traveler upon the highway in the situation of the plaintiff could have had at the time of the accident, and the distance from the crossing at which he could see the approaching headlight, it is claimed that there is a substantial dispute in the testimony, and that there is evidence tending to show that he could not see it until — 511 — ■within forty-five feet of the track. Careful examination of the testimony, however, shows that there is substantially no dispute. The fact is established without contradiction that at the time of the accident the headlight of a locomotive on the track at any point between the crest of the hill and the crossing could be seen by a traveler on this highway approaching the crossing from the north at any point within a distance of 500 feet; that is, when the traveler got to a point 500 feet from the crossing, he could see a locomotive headlight approaching from the east all the time after it gained the top of the hill until it reached the crossing, a distance of about three quarters of a mile. This fact appears from the testimony of three entirely disinterested witnesses, residents of Elkhorn, who made the test with a locomotive, at night, upon the very spot of the accident, within two weeks after it happened, when the conditions were all the same except as to the fog, which, as we have seen, did not interfere- materially with the vision of a locomotive headlight. This testimony is also strongly corroborated by a large photograph of the road, crossing, and track, taken a few days after the accident, and attached to the bill of exceptions. It is true that there were some bunches of willows along the north side of the right of way of the railroad at and near the whistling post (eighty rods from the crossing), and at various points along the track further east. It is true, also, that there is testimony from witnesses who made some measurements and observations in September, 1894, when the foliage was on the trees, to the effect that these willows obstructed the view of the whistling post and track, or a train thereon, up to a point about forty-five feet north of the railroad track. This testimony, however, did not meet or contradict the testimony as to the view of a locomotive headlight at night in the month of December. Both classes of evidence may be true. Our conclusion is that the testimony which shows that the headlight of an engine com — 512 — ing down the bill for nearly three quarters of a mile is visible to a traveler on the highway in the month of December at any point north of the crossing within a distance of 500 feet is without dispute. This fact makes the case before us far stronger against the plaintiff on this point than the Haetsch Case. Thus it will be seen that the only material point in which the case before -us is stronger for the plaintiff than the Maetseh Case is the fact that the speed of the engine in the ■present case, when it crossed the center line of the highway, was limited by law to fifteen miles an hour, whereas in fact ■the evidence tended to show that the speed was as much as sixty miles an hour. This fact is entitled to consideration in determining the question of the alleged contributory negligence of the deceased. The deceased had the right to act upon the assumption that the train would not be moving at a. greater rate than fifteen miles an hour when it crossed .that highway. Piper v. C., M. & St. P. R. Co. 77 Wis. 247. We do not think that this consideration, however, can save the deceased from the imputation of contributory negligence as a matter of law which must follow from the other facts in «evidence. The plaintiff’s own evidence satisfactorily showed, without dispute, that the deceased was a careful driver .and accustomed to handling horses; that his horse was well broken and easily managed; that the deceased undoubtedly .approached the crossing at a moderate rate of speed, not exceeding four miles an hour; and that his horse did not run, but pursued an even gait clear up to the crossing. The nature of the evidence which clearly showed these two last-mentioned facts heed not be detailed; it is sufficient to say that they were satisfactorily proven. These facts, taken in connection with the facts previously referred to in this opinion, namely, that the headlight of the engine could have been seen by the deceased at any point within a distance of -500 feet from the track as soon as the light appeared above — 513 — •the crest of the hill, and from that point clear to the crossing, clearly show contributory negligence. There is no room left to indulge any presumption that the deceased was exercising ordinary care. Such a presumption undoubtedly exists where there is no testimony showing the conduct of the ■deceased at the time of the accident, but this is not such a •case. This is a case where it affirmatively appears that the deceased approached a crossing with which he was familiar, driving a gentle horse, under control, at a very moderate gait, and that for a distance of 500 feet before reaching the crossing he could have a full view of the headlight of any engine which had passed the crest of the hill. These facts, as before stated, negative any presumption of ordinary care, and show affirmatively lack of such care. It demonstrates either that the deceased did not look at all, or that, having looked, he deliberately, and with his horse under control, took the risk. In either case there can be no recovery. By the Ooiort.— Judgment affirmed.