Hogan v. Winnebago Traction Co.

WiNsnow, J. ■ We think tbe trial court was right in setting aside the findings of tbe jury to the seventh, tenth, and [126] eleventh questions, and in entering judgment for the defendant. It seems to ns beyond question that the admitted facts show that the driver of the horse was guilty of contributory negligence. The place where the driver turned his horse upon the track was not in dispute. It was at a point about thirty or thirty-five feet west of the line of Main street. At this point the cars coming down Main street could certainly be seen when at a distance of ninety-five feet measuring around the curve of the track. The horse was gentle and under control. The train was going (as found by the jury) at the rate of seven miles per hour. The horse was walking. The train stopped as it touched the buggy, without injuring it. All these facts are verities in the case. Now, when Cole drove upon the track the train was either in sight or it was not in sight. If in sight, he either drove on without looking, which was negligence, or he looked, and then drove on with knowledge of the approach of the train, and thus assumed the risk. If the train was not in sight when he drove on the track, then it is a demonstration that he must have allowed his horse to stand upon the track and wait for the train to run him down. The train was going at the rate of seven miles an hour. It traveled more than ninety-five feet under the last supposition, and its speed was constantly diminishing till it came to a standstill, and during all this time the horse was allowed by his driver to stand on or near the track. During the time that the train was proceeding ninety-five feet, granting that a horse walks no more than three miles an hour, the horse could have walked at least forty feet, and could easily have been beyond all danger. The physical facts which are verities in the case and incapable of being explained away demonstrate the contributory negligence of the driver beyond dispute. In this view of the case no other question need be considered. By the Court. — Judgment affirmed.