Lenz v. Whitcomb

PiNNey, J. Por a distance of from 200 to 300 feet, as the plaintiff and his companion approached the track at an angle of thirty degrees, neither of them looked to see whether any train was approaching the crossing, and it is clear that there was no obstacle that in any material respect could have obstructed or obscured their view. The plaintiff was entirely familiar with the locality, crossed there twice, at least, every week, and knew that a train was liable to pass at almost any time. The horse was a gentle one, and accustomed to the presence of trains. By looking northerly, they could see in the direction of the city whither they were going. By turning partly around to the right, the view was unobstructed, so that a person at any point within the highway, within 314 500 feet of the'crossing, could see a train, on the track, in the direction from which it approached, for a distance of nine-tenths of a mile. They understood that a train was likely to come along, and they had stopped twice, and looked in both directions, and listened. "When they started up the last time, within about 200 or 300 feet of the crossing, one of them testified that they proceeded at a moderate trot until struck by the train, and the other that the horse walked about 100 feet, and then proceeded at a moderate trot. Both say that they listened, and both agreed that they did not look for an, approaching train. The rule is inflexible that a party approaching the track, intending to cross it, is bound to both look and listen, and a failure to do so is negligence, which disentitles him to recover if injured, in crossing, by the train. The failure of the defendants to give the proper signal was.such negligence as would have made them liable in the action, in the absence of contributory negligence on the part of the plaintiff, but, if he was guilty of such negligence, the negligence of the defendants becomes immaterial. If the plaintiff could have prevented or avoided the accident by using his eyes in looking and his ears in hearing, then he was not entitled to recover. It is beyond question that had he used ordinary vigilance in looking, after passing the 200-foot point, he would have avoided injury. With his horse under control, he took the risk of proceeding without attempting to make further observation. Bower v. C., M. & St. P. R. Co. 61 Wis. 457; Williams v. C. M. & St. P. R. Co. 64 Wis. 1; Seefeld v. C., M. & St. P. R. Co. 70 Wis. 216; Schmolze v. C., M. & St. P. R. Co. 83 Wis. 659; McKinney v. C. & N. W. R. Co. 87 Wis. 282; Nelson v. D., S. S. & A. R. Co. 88 Wis. 392; Groesbeck v. C., M. & St. P. R. Co. 93 Wis. 505. It was urged that the question of contributory negligence in this case was one of inference, and that, where the inferences to be drawn from the evidence are doubtful and uncertain, the question is one for the jury within the rule in 315 Seefeld v. C., M. & St. P. R. Co., supra; but upon the facts about which there is no dispute, and against which there can be no fair inference, it is clear that the plaintiff was guilty of contributory negligence. The angle of approach •of the highway and the railroad track was only about thirty degrees, and for a considerable distance they were quite near to each other, and at no point, for 500 feet, ufore than 200 feet apart. Knowing that a train was liable at almost any time to pass over the crossing, and that the passenger train was nearly due, if the view of the track was so obstructed that he could not see an approaching train in time to stop his horse before colliding with it, and if he was unable to hear an approaching train when the wagon was in motion, he should have stopped his wagon before arriving at the danger line, and taken proper observations and precautions to have avoided injurjn Had he continued to exer-cis'e proper caution after he started up the last time, there is no reason to suppose but that he would have been able to have avoided injury; but he wholly omitted to do so. Although he had observed all reasonable caution until he was within 200 feet of the point of danger, there can be no fair inference of ordinary care, as against the plain and established facts of the case, which show that the plaintiff, by •contributory negligence, is precluded from recovering. The circuit court should have set aside the verdict, and granted .a new trial. By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.