Marshall v. Green Bay & Western Railroad

MAeshall, J. There is ho principle in. tbe law of negligence better settled than tbe one that a person before entering upon a railway track should look both ways and listen to discover if there is a train approaching and in such close proximity as to render it dangerous to proceed. The presence of a railway track is such an admonition of the probability of danger to one entering thereon, that nothing but physical impossibility will excuse his neglect to use his senses of sight and hearing to discover whether a train is dangerously near ■or not before so doing. A person is not only bound to look and listen for such a train before entering upon a railway track, but is bound to hear and see one, if there is such, and reasonable attention to the matter will enable him to do so, and if he attempts to cross the track in violation of such duty or in the face of danger after discovering it, he takes in his ■own hands the entire responsibility for what may follow as to injuries to himself, though produced in part by negligent conduct ^ of the railway trainmen. One cannot reasonably expect the law to hold others responsible for his personal safety, as regards their mere negligence, if he sees fit to disregard such safety himself. Counsel contend this case does not' fall within the general rule as to crossing cases since appellant testified distinctly as -to having exercised a high degree of care to discover an approaching train and failed to see or hear any, and the situation was such on account of inconvenience in making an efficient observation, by reason of the location of the track as regards the highway, and some slight interferences with the line of vision in the direction of the train till he was pretty close to the track, that it is not entirely improbable that he looked and listened, as he testified he did, and yet failed to discover the danger. We are unable to discover any ground whatever for disturbing the decision of the trial court that had appellant looked easterly upon the track at anv time after [100] passing over tbe sixty-eight feet before be reached tbe same be must bave seen tbe approaching train, and further that if be depended upon bis bearing be must bave beard tbe train. Having such an opportunity to know of its approach be was bound to improve it efficiently. Tbe court did light in taking tbe case from tbe jury. There was no room in tbe evidence for an honest finding that appellant performed tbe duty be owed to himself, and yet failed to see tbe train till it was too late for him to avoid it. Where a physical situation renders tbe right of a matter clearly beyond all reasonable controversy, there is no accounting for testimony to' tbe contrary, except upon tbe theory of mistake or wilful false swearing, and in such circumstance tbe moré positive and definite tbe testimony tbe greater tbe indication of fault, greater than can be reasonably attributed to mere mistake. In such a case, regardless of tbe amount of evidence from tbe mouths, of witnesses, there is no conflict to be solved by a jury, because m> just verdict can ever be rendered contrary to all reasonable probabilities. As we view tbe case, it is plainly ruled by Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W. 179; White v. C. & N. W. R. Co. 102 Wis. 489, 78 N. W. 585; Steber v. C. & N. W. R. Co. 115 Wis. 200, 91 N. W. 654, and similar cases. By the Court — Tbe judgment is affirmed.