Hain v. Chicago, Milwaukee & St. Paul Railway Co.

Winslow, C. J. It conclusively appears from the evidence that the deceased was in full possession of all her faculties; that she was accustomed to handle horses; that she was driving a gentle team entirely under control at all times; that she was acquainted with the crossing and its surroundings ; that she had driven across it frequently at about this same time of day; and that she knew that the train which ran her down was due at about the time she approached the crossing. The long whistle of the approaching passenger train was heard by many people, some of them more distant from it than the deceased, and if Collins’s statement he accepted as true she stopped at the time it was blown and then deliberately whipped up her horses to get across the crossing in advance of the train; however, we should not wish to rest the case on the assumption that she heard the whistle. Taking all the evidence together one of two conclusions must inevitably be reached: Either she looked to the west before she reached the crossing, saw the approaching train, and whipped up her horses in an attempt to cross in front of it, or she did not look west at all (at least until her horses were practically on the track), and was urging her horses forward to get across the track before the freight train should start. In- the one case it was a deliberate race with death, in the other case it was an attempt to cross a railroad track without looking to see whether a train was coming. In either case it was negligence under many rulings of this court. The opportunity to look was unobstructed for more than seventy feet before she reached the crossing. As said in Guhl v. Whitcomb, 109 Wis. 69, 85 N. W. 142, the duty to look and listen is absolute where the opportunity exists; that duty is not excused by mere diversion of attention, as it may be in highway cases, but there must be circumstances for which the traveler is not responsible which so irresistibly force his attention to something else as to deprive him of his opportunity to perform the duty. Quid v. Whitcomb, supra. [311] The freight train standing on the passing track was rightfully there, and the fact that it was there was a fact naturally to be expected by one familiar with the station and its surroundings. A fact which a traveler is bound to anticipate as likely to exist as he approaches a railroad crossing cannot logically be held to deprive him of his opportunity to look. Koester v. C. & N. W. R. Co. 106 Wis. 460, 82 N. W. 295. The evidence shows that the deceased could have looked west along the rails of the track more than 1,400 feet before-she came in sight of the freight engine, and after coming in sight of it could easily turn her horses out of danger into the driveway west of the tobacco warehouse. Under well-established rules there can be no recovery under the evidence before us, as sad as the circumstances admittedly are. By the Court.- — Judgment affirmed. SiebecKek and TimliN, JJ., dissent.