Goldmann v. Milwaukee Electric Railway & Light Co.

Dodge, J. This case falls so clearly within the principles announced in a long line of decisions, and so completely within the material facts of such cases as Nolan v. M., L. S. & W. R. Co. 91 Wis. 16, 64 N. W. 319; White v. C. & N. W. [170] R. Co. 102 Wis. 489, 78 N. W. 585; Koester v. C. & N. W. R. Co. 106 Wis. 460, 82 N. W. 295, and Guhl v. Whitcomb, 109 Wis. 69, 85 N. W. 142 — tliat extended discussion or even reiteration of tire reasons controlling it, cannot be justified. Due care in approaching a railway track can be satisfied only by the full use of the senses of sight and hearing at the last moment of opportunity before passing the line between safety and peril. Schroeder v. W. C. R. Co. 117 Wis. 33, 38, 93 N. W. 837. The last moment for such observation in the present case was just before plaintiff’s horse stepped upon the track on which plaintiff knew a car was approaching, for the evidence was undisputed that the movement of'the horse was so slow and so without momentum as to approximate the plaintiff almost exactly to the situation of a foot passenger, as to whom it is pointed out that the single step onto the track is negligence unless, before taking it, he assures himself, by observation, of its safety, if the view is unobstructed. Had plaintiff, during the eight or nine seconds occupied in driving from the sidewalk crossing onto the-track, looked even once more at the approaching car, he must have observed, according to his own description, that its speed was such as to make the crossing perilous unless he greatly accelerated the movement of his horse or that of the car was-diminished. During all this period, however, with full opportunity to look and see, he proceeded without- a glance, relying, if he thought at all, on his reasoning as to the safety. Reasoning, however, is not due care when opportunity for observation exists. It is only when deprived in some degree of' such opportunity that one may, consistently with due care, rely on his judgment as to chances. Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593, 84 N. W. 823; Schroeder v. W. C. R. Co., supra. Neither can he, as counsel suggests, rely on any assumption that a car is moving at a reasonable, or any other, rate of speed, where he has opportunity to observe the contrary. [171] Eespondent’s counsel also seems to invoke the doctrine of a right of way in favor of plaintiff, and cites thereto Tesch v. Milwaukee E. E. & L. Co., supra. That no such right existed when, as established by the result, some diminution of’ the speed of the car was necessary to enable him to pass in safety, is fully declared in that case and in Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, 335, 85 N. W. 1036; but whether it did or not is immaterial. It may be the most obvious negligence to exercise a clear right, and, if so, and contributing, it precludes plaintiff from recovery. Brown v. C. & N. W. R. Co. 109 Wis. 384, 85 N. W. 271; Watermolen v. Fox River E. R. & P. Co. 110 Wis. 153, 157, 85 N. W. 663. As result of those considerations we deem it conclusively established beyond difference of opinion that “a person in the exercise of ordinary care, under circumstances similar to those surrounding the plaintiff, after first seeing the car,, would have ascertained at some time thereafter, and before the horse reached the first track, that the speed and position of the car was such as to render an attempt to cross in front' of the car dangerous,” and that “want of ordinary care on the part of the plaintiff did contribute to produce the injury he received;” hence that the negative answers to these two-questions — respectively the fourth and fifth of the special verdict — should have been set aside, and affirmative answer substituted by the court upon defendant’s motion for such, order. By the Gourt. — Judgment reversed, and cause remanded with directions that the circuit court grant defendant’s motion to change the answers to the fourth and fifth questions in the special verdict from “Uo” to “Tes,” and upon the verdict, as so changed, to enter judgment for defendant.