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

"W IN snow, O. J. The highway crossing in question was not within a city or incorporated village, hence it was within the terms of that part of sec. 1809, Stats. (1898), which requires that the engine whistle shall be blown eighty rods, from the crossing and the bell continuously rung from that point until the highway be crossed. As the engine in the present case started from a point well within the eighty-rod limit, the requirement that the whistle be blown eighty rods from the crossing became impossible of fulfilment; but the requirement that the engine bell be rung, at least from the point of starting until the highway was crossed, was still applicable and entirely possible of fulfilment. Furthermore, even in the absence of express statutory requirement it was the duty of the defendant to approach the crossing with due care, having regard to the physical surroundings and the obstructions to vision, if any, and if the circumstances called for the giving of signals in order to properly conserve the safety of travelers who were approaching the crossing in the exercise of oi’dinary cai’e the omission of the defendant to [567] give such signals would be negligence. Eilert v. G. B. & M. R. Co. 48 Wis. 606, 4 N. W. 769. There was sufficient evidence from which the jury would have been justified in finding that no signal of any kind was given by the defendant’s employees at any time during the approach of the engine from the time it started from the main track of the Menominee branch until it reached the crossing. There was also ample proof that the view of the track was partially or wholly obscured by bushes and trees so that a traveler on the highway coming from the west could not well see an approaching engine or train until he reached a point 140 feet from the crossing and .perhaps nearer. So it must be held that there was sufficient proof to sustain a finding that defendant’s employees were negligent in failing to give signals as the train approached the crossing,, and the serious question in the case is whether the evidence would warrant a finding that such negligence, if found, was the proximate cause of the collision. Of course, there must be proximate causal relation between the negligence and the collision in order that the plaintiff may recover. The trial judge held that this causal relation could not be found, the reason being that it was the duty of the driver of the team to stop and look and listen before he got so near the crossing that he would be struck or that Ms horses would he frightened by the sight of an approaching engine. In other words, that the driver must determine where the danger zone, within which his horses are in danger of being frightened, begins, and must at his peril stop before entering upon that zone, and that if he does not do so, but proceeds without such precautions and suffers injury by the frightening of his horses by a negligently operated train, he is necessarily guilty of negligence which is the proximate cause of his injury and is remediless. We think this rule is entirely too- strict and imposes too' onerous a burden on the traveler. While this court has eon568 sistently beld tbat it is tbe imperative duty of every traveler approaching a railway track to look and listen for a train, it bas not beld tbat it is always bis duty as matter of law to stop, even tbougb be be driving a team. Generally tbe question whether be should stop or not will be a question for tire jury after due consideration of all tbe surrounding circumstances. Duffy v. C. & N. W. R. Co. 32 Wis. 269; Eilert v. G. B. & M. R. Co. 48 Wis. 606, 4 N. W. 169; Seefeld v. C., M. & St. P. R. Co. 70 Wis. 216, 35 N. W. 278; Abbot v. Dwinnell, 74 Wis. 514, 524, 43 N. W. 496; Duame v. C. & N. W. R. Co. 72 Wis. 523, 40 N. W. 394. True, there may be eases where tbe view of the'approaching traveler is so thoroughly obstructed and bis bearing so cut off by tbe noise of bis wagon or by other causes that it is evident tbat neither sight nor bearing will afford him any protection, and in such cases if there be no conflict in the evidence tbe court will be justified in bolding as matter of law tbat be should stop and malee investigation, especially if be knows tbat a train is due. Seefeld v. C., M. & St. P. R. Co., supra. Such cases, however, are exceptional, and we do not regard this as one of them. Tbe evidence shows that the obstructions to tbe vision ceased at a point about 140 feet from thp crossing; tbat tbe road was a sandy road, and tbat tbe buggy was a spring buggy and made very little noise. There was no evidence of other noises nor tbat any wind was blowing, and tbe driver testified tbat be could have beard tbe engine bell bad it been ringing. Under tbe circumstances we think tbat tbe question whether ordinary care required him to stop his team was one for tbe jury. Tbe statutory requirement tbat tbe engine bell be rung before reaching and while passing over tbe crossing is designed, not merely to prevent travelers who are about to use tbe crossing from running into tbe train, but also to enable them to know of the approach of tbe train at a sufficient distance to guard their horses against taking fright. 2 Thornp'. Com. on Neg. § 1926; Norton v. Eastern R. Co. 113 Mass. [569] 366. This court in Ransom v. C., St. P., M. & O. R. Co. 62 Wis. 178, 22 N. W. 147, held that one who was traveling upon a highway parallel with the railroad track and near a crossing was also entitled to the benefits of the statute though not intending to use the crossing, and might recover for damages sustained hy reason of the 'frightening of his horse because of the unexpected appearance of the train when no crossing signal had been given. Whether this case can now be construed as authority for the extreme view that a traveler on a parallel highway not expecting to use the crossing is entitled to rely on the statute requiring crossing signals is rendered more than doubtful by the partial disapproval of that case in Walters v. C., M. & St. P. R. Co. 104 Wis. 251, 80 N. W. 451, and this latter case seems to have been the case relied on by the trial judge in directing a verdict. As matter of fact, however, the Walters Gase was not a case where a train approached a crossing intending to p-ass over it and failed to give the statutory signals. The plaintiff was approaching a city crossing from the east driving his team and was sitting on the hounds of his wagon. A switch engine and car was operating on the tracks somewhere north of the crossing. Before reaching the track he could see to the north a distance of 170 feet, but he did not look. Just as he was crossing the switch engine and car approached from the north, but stopped, as it was intended it should, at a switch just before reaching the crossing. A flagman at the crossing did not give the plaintiff notice of the approach of the switch engine. The plaintiff’s team became frightened at the noises made by the engine and car and ran away,"and he was injured by being thrown from the wagon as the team turned a corner a block east of the crossing. This court reversed a judgment in plaintiff’s favor on two grounds: Eirst, because he was guilty of contributory negligence in not looking to the north; and, second, because there was kno duty on the part of the railway employees to notify a traveler-that a switch engine which was not to cross the street was merely operating in the [570] vicinity. So far as the latter proposition was in conflict with, the Hansom Case, that case was overruled, but no farther. We do not see how the Watters Case controls the present case. Here a switch engine was approaching and about to pass over a highway crossing without signal, in violation of the statute. A traveler was approaching the crossing and listening for the signal. The circumstances were not such as to make it negligence as matter of law for him to approach without stopping. The evidence tended to show that by reason of the failure to give the statutory signal he was led to approach to a point nearer than he otherwise would have done, and to a point where the sight and noise of the coming train frightened his horses, causing» them- to become uncontrollable so that they dashed against the train. If these facts should be found by the jury the chain of proximate causation would be complete. By the Court. — Judgment reversed, and action remanded for a new trial.