Koester v. Chicago & Northwestern Railway Co.

Dodge, J. On this appeal findings that defendant’s train was running at an unlawful rate of speed, that the statutory crossing signals were not given, and that defendant’s servants were guilty of negligence proximately causing the accident, are not seriously assailed. The assignments of error substantially resolve themselves into the contention that plaintiff’s own evidence shows conclusively that the deceased was guilty of contributory negligence, in that he drove onto the crossing without proper or any efforts, to inform himself whether a train was approaching, or with knowledge of its approach. The rule of law that he who intends to cross a railroad track is not free from negligence unless he make vigilant use of all his faculties to ascertain the approach of a train, has been repeated by this court under so many variant circumstances that its statement again seems hardly necessary. If, during any part of his course, the track is obscured from his vision, the duty is all the more imperative to avail himself of every possible unobscured opportunity, and, if partial obstruction to vision or hearing exist, to make effort to overcome such obstruction. . Omission of any reasonable effort likely to be effective is negligence as matter of law, not merely is it evidence of negligence. Further, it is held that if the approaching train was visible the traveler wfill be pre465 sumecl to have seen it, and his denial will not suffice to overcome such presumption. The cases in which these rules have' been declared and applied have become so numerous as to make their repeated citation burdensome. The more important are mentioned in Nelson v. D., S. S. & A. R. Co. 88 Wis. 392; Schneider v. C., M. & St. P. R. Co. 99 Wis. 378; Cawley v. La Crosse City R. Co. 101 Wis. 145; and Vant v. C. & N. W. R. Co. 101 Wis. 363. To the rules above outlined it may be added that he who sees an approaching train, in such proximity as to make haste necessary, cannot, consistently with due care, needlessly engage in a race with death by attempting to pass the crossing ahead of it. Such conduct is characterized as recklessness and gross negligence. Langhoff v. M. & P. du C. R. Co. 23 Wis. 43; Haetsch v. C. & N. W. R. Co. 87 Wis. 304, 310; Groesbeck v. C., M. & St. P. R. Co. 93 Wis. 505, 513. In the case before us the deceased drove rapidly, and without pause, from a point 500 feet away to collision at the crossing. During the early part of his progress the onrushing peril must have been plain before his eyes. At another place, ninety feet from danger, he had opportunity to inform himself by the very slight exertion of standing in his buggy to look over the posts piled between the buildings. This we know he did not do, but either heedlessly or knowingly hurried forward into a space whence he could not see, and thence onward to the crossing. Thus, independently of his conduct upon reaching the right of way, the deceased was’ clearly guilty of negligence at two points in his progress before reaching it, first in the early part of it, near the elevator, for there he could have seen the train had he observed what was before his eyes. The only witness on the subject testifies: “He would have a very good view of the track for some distance from the elevators,— of the track south of the lumber yards and near what is known as the bridge.” Respondent’s counsel asserts that this part of the [466] track visible was only that more than 900 feet south of the crossing. Let that be conceded, still the train was in full view; for at the time deceased left the elevator, about forty-eight seconds before the collision, the train must have been about 1,600 feet south of the crossing, and coming toward deceased, in plain sight for some twenty seconds, while he traveled half of the 400 feet between the elevator and Water street. He either did or did not see that train. If he did, the fact that he was urging his horse forward as he passed the lumber office and thence to the crossing is plenary evidence that he was attempting to reach and pass the crossing ahead of it; conduct which, as we have said, can be characterized only as gross negligence,— a wholly needless exposure of himself to a known peril. The balancing of the chances upon the relative speed of the train and his horse, and the assumption of so great a hazard when he might adopt the alternative slight inconvenience of waiting one or two minutes for the train to pass, is not permitted to one who. would hold another liable for the resuLt. If, on the other hand, he did not see the train, his negligence was only less industrious and wilful. His failure to see must have been due to the most complete omission of any effort, and this, too, with the knowledge that he was about to pass into a space where his view would be obstructed; for he was entirely familiar with the crossing and its surroundings. No ordinarily careful man, intending to pass this crossing, would have omitted this opportunity to inform himself whether a train then about due was within half a mile. Again, as he turned onto Water street there was, as already stated, opportunity to ascertain whether there was an approaching train by rising in his buggy and looking between the office and the lumber shed. This was equally the part of ordinary caution, whether he had seen the train while leaving the elevator or had neglected to ob [467] serve; for he was about to enter another space from which his view would be obstructed until he reached the tracks. Had he looked he would have seen the train, for his lines of vision would have extended over all the track from the bridge to a point within 300 feet of the crossing, as established either by geometrical computation or by application of a straightedge to the scale map in evidence. The engine must then have been about nine seconds, or 306 feet, from the crossing, with the train reaching' 340 feet behind it southward. Had the train not been within his lines of vision, he would have been safe: it must have been either too near Or too distant for collision. Passing from the acts of negligence above discussed, the conduct of the deceased, as disclosed by the evidence, after he reached the railroad right of way directly north of the northwest corner of the lumber shed above described cannot be made consistent with due care. As he reached this point his view of the main track was obscured for only a space of 160 feet by the switch engine and tender standing on the .side track. Between that engine and the south end of the lumber shed was a space of some fifteen or twenty feet, which gave him a view, continually enlarging as he progressed, of the track southward, and within this field of vision must have been the train at this moment. According to the distances and speed as found by the jury, the engine was approximately 175 feet from the crossing at the time the deceased passed the corner of the lumber shed, and behind it for 354 feet stretched the train. Whether thése figures be perfectly accurate or not, they suffice to make it certain that some part of the train was visible only 200 or 300 feet .away, and that the most casual glance to his left, as he entered upon the right of way, fifty feet from the crossing, -or immediately thereafter, would have disclosed to him his peril. That he did not give even this casual glance seems an irresistible conclusion, for it is inconceivable that he would [468] have proceeded bad be seen tbe train. Not having informed himself at either of the earlier opportunities whether or not the train then due was at hand, certainly it was the part of ordinary caution to have availed himself of this opportunity, the last before he placed himself irrevocably in peril. True, the jury finds that had he looked at this point he could not have seen, but such a finding cannot be sustained for a moment, as against the absolute physical demonstration furnished either by geometric calculation or the application of direct lines of vision to the map offered in evidence. Long before the deceased reached this point he necessarily knew that the switch engine and caboose had moved onto this side track and would obscure a part of the view, and the duty arose to exercise all the more vigilance to avail himself of the so limited space for observation. The evidence refutes such conduct; for, instead of pausing to secure the full benefit of the glimpse through this narrow space, he- continued to urge his horse more rapidly forward. The conduct at this point, as well as while passing the space between the office and the lumber shed, marked, as it was, by increasing haste and forbearance to observe, seems inconsistent with any theory save that when leaving the elevator he had seen the approaching train, made up his mind to the effort to cross ahead of it, and was persisting in that effort, without seeking further to inform himself of the safety or peril. Whether that conclusion be the correct one or not, however, the neglect to look at these places was omission of that vigilance which the law demanded of the deceased, under all the circumstances. On no theory of his conduct was it consistent with due care. Not to look was negligence; to proceed after looking and seeing -what he must have seen was likewise negligence. The respondent lays much stress upon the presence of the engine and caboose upon the adjoining side track as a diversion of the attention of the deceased, and also as an assur469 anee to him, from the fact of its movement southward, that no train was approaching from that direction. He predicates both of these effects upon an erroneously stated situation. The picture which he draws is that of the passing engine and car in front of the deceased as he was going westward toward the track. This is not in accordance with the evidence. Mr. Weil, the only witness who saw that engine and caboose in motion, testifies that it passed over the crossing about a minute before the collision. This was before the deceased left the elevator; for, at the rate he traveled, he required but about forty-eight seconds from the elevator to the crossing. This engine, therefore, had started while he was still at the elevator, whence he could easily observe it, and had passed down the side track and over the crossing, and must have come to its stop, twenty or thirty feet south of the crossing, some seconds before he turned westward onto Water street, and the northerly end of it was plain before his eyes for a considerable distance. It would be waste of space to enter upon comparison with various decided cases, where confusion, misconduct of horses, absence of customary flagman or gates, or other circumstances have been held sufficient to raise a question of- fact as to a plaintiff’s negligence. Under the general rules of law which are suggested above, each individual case must be decided substantially upon its own facts, and there is not enough similarity between the circumstances here presented and those of any of the decided cases to make analytical comparison beneficial. Suffice it to say that from the facts, which are substantially undisputed, nothing appears which could reasonably have forced his attention away from the ever-present and urgent duty to look out for this train known to be due, nor have served as an intimation or assurance to him that no train was approaching. Indeed, stoppage on the side track of the freight was rather the reverse in effect, and might well have suggested that the regular passenger train was at hand. [470] The conclusion of negligence arose irresistibly, and by operation of law, from plaintiff’s own evidence as to the conduct of the deceased, and it was the duty of the trial court to have so decided upon defendant’s motions for non-suit, for direction of verdict, and for a new trial. Error was committed in the denial of each of those motions. By the Oowrt.— Judgment reversed, and cause remanded for new trial.