Swalm v. Northern Pacific Railway Co.

BabNES, J. The errors assigned in this case are. (1) the-driver was guilty of contributory negligence as a matter of law and the court erred in refusing to so hold; (2) the court erred in the charge given to the jury and also in failing to charge upon certain points; (3) the court erred in refusing to> submit a question to the jury requested by defendant. [444] It is not seriously contended that bad tbe driver stopped bis team before attempting to cross the tracts be could have seen tbe approaching engine. Generally tbe • question of whether a person driving a team should stop or not before attempting to cross a railway track is a question for tbe jury and not one to be decided as a matter of law by tbe court. Kujawa v. C., M. & St. P. R. Co. 135 Wis. 562, 568, 116 N. W. 249, and cases cited. Tbe opportunity for tbe driver in this case to look and listen while crossing tbe tracks was established. It is because of bis alleged failure to exercise such opportunity that defendant contends that the court should bold that contributory negligence was so clearly established as not to be a jury question. This claim is urged upon tbe ground that tbe engine was proceeding at a speed of from four to six miles an hour only, and that it was in plain sight for a distance of ninety-eight feet before it reached tbe crossing upon which plaintiff’s horses and sleigh were struck. This being so, it is argued that if the driver had proceeded with due care and had used his eyes he would have had ample time in which to bring his team to a standstill before reaching the track upon which the engine was moving. Five witnesses testified that the engine was not moving at a speed to exceed from four to six miles per hour. The driver testified that it was running at the rate of twenty-five or thirty miles per hour. The .jury found that its speed was fifteen miles per hour. It is contended that this finding is not supported by the evidence. We think it is. The engine was running light and its brakes were in perfect order. They were set about thirty feet east of the crossing. After they were set the engine ran about 150 feet before it came-to a stop, and for over 100 feet of this distance the tender was pushing or dragging the horses and sleigh along'the track. The jury might well have believed that the 'estimates of the witnesses on both sides were wild as to the rate of speed, and the conceded facts would indicate that the jury reached an intelligent and rea [445] sonable conclusion. Conceding tbat the finding of the jury on the question of speed should stand, the contributory negligence of the driver was plainly one for the jury. lie testified that he both looked and listened and that no warning or signal was given indicating the approach of the engine, and that after he saw the engine it collided with him before he had any time to avoid the accident. There is evidence which would warrant the jury in finding that the engine could not have been seen by him at a distance of over sixty or seventy feet. It would take the engine not to exceed three to four seconds to cover this distance. The horses were well over the track when the collision occurred. This was a very short time within which to get the horses out of the zone of danger-in which they were when the peril was discovered. We cannot say as a matter of law that the jury was not warranted in finding that the driver exercised ordinary care. Error is assigned because the court refused to submit the following question to the jury: “Were the horses trotting at. the time they approached the crossing ?” Whether they were or not was merely an evidentiary fact bearing upon the contributory negligence of the driver, and the court very properly refused to include the question in the special verdict. The court instructed the jury that ordinary care on the part of the driver would be “such a degree of care and caution, all things considered, that a reasonably prudent man would have exercised.” The instruction is faulty because of the omission from the end thereof of the words “under the same or similar circumstances.” The standard definition of ordinary care was given in connection with a question in the special verdict dealing with the negligence of the defendant. The omitted clause adds little to the definition. * The error,, if there was one, was technical and did the defendant no injury. Palmer v. Schultz, 138 Wis. 455, 120 N. W. 348. Error is assigned because the court failed to instruct the jury as to the degree of care which a person circumstanced as [446] the driver was‘in this case should exercise in undertaking to make a crossing. No instruction was requested upon the point and error cannot be predicated on the failure of the •court to instruct in the absence of a request. The second question submitted to the jury was: “Is defendant chargeable with want of ordinary care on the occasion in question ?” It may well be doubted that a finding that a defendant is chargeable with a want of ordinary care is equivalent to a finding that he is guilty of a want of ordinary care, inasmuch as the word “chargeable” imports subject to mere accusation only, as well as actual guilt. The departure from the approved form of question worked no injury in the present case and no error is predicated upon it. Cases might well arise, however, where a change in phraseology would result in more serious consequences, and it is suggested that the better and safer practice is to use the common and approved form of inquiry when submitting to the jury a question dealing with ordinary card. By the Court. — Judgment affirmed.