Michaels v. Chicago, Burlington & Quincy Railroad

KeewiN, J. Tbe questions raised by the assignments of error are (1) negligence of defendant; (2) contributory negligence of deceased; (3) improper admission of evidence; and (4) denial of motion for new trial. Tbe private crossing where tbe injury occurred was known as tbe Seater crossing, and tbe public crossing as tbe Red Wing crossing, and tbe latter was one mile northwest of tbe private crossing. There is evidence tending to show that tbe defendant’s track approaches tbe Seater crossing on a two-degree curve. This crossing leads from tbe bouse and bam of deceased on high land north or northeast to tbe track and to — 472 — tbe low land south or southwest of the track and runs diagonally across the right of way. The lower gate of this private crossing is about 250 feet westerly from the upper gate. At different points upon the right of way at this crossing one could see northwest on the track a distance, varying with the position occupied, from about 140 to 600 or 700 feet. A whistle blown eighty rods above the public crossing could sometimes be heard at the private crossing, sometimes not. A person standing on the private crossing could at times hear the rumbling of an approaching train before it came in sight, sometimes not. This private crossing was used only by Seater and a few others, his farm lying on both sides of the railroad track. Deceased did not know much about the crossing or the use of it, since he had lived with his brother only a short time, having moved there from Iowa about three weeks before the injury. Deceased knew trains passed very frequently and knew one was going about the time of the injury, but did not expect it so early, or did not think it was due at the time of the injury, but still deceased was looking and listening for the train. The house in which deceased lived was on a hill about twenty-five rods east of the upper gate of this right of way. The private way extended down from the top of the hill to a ravine, then passed along the edge of the ravine on the side of the hill which caused the curve in the railroad track. This hill obstructed the view of the railroad track to the north. The wagon track extending down the hill to the crossing was narrow, about wide enough for a wagon, and on the upper side of the wagon track was a bank which continued down to the crossing. There is a bluff on the upper side of the track, quite steep> about 150 feet high from the track up to the top of the hill. A person standing on the private crossing could hear the noise of an approaching train only when it was a short distance from the crossing. In the forenoon of December 5, 1908, deceased with his two sons, Elmer, aged seventeen, and William, aged fifteen, left — 473 — the house on the top of the hill to cross the track to get a load of wood, Elmer driving. When they arrived at the upper gate they opened it and stopped and listened for a train, but did not hear any. Deceased went down to the crossing, looked and listened for a train, and then signaled Elmer to come'on. He stood on the crossing looking and listening until Elmer was about sixty feet away, and then started for the lower gate, still looking north, the direction from which the train came. Elmer had his horses on the crossing and the deceased was about ten or twelve feet from the crossing when the younger son hollered that a train was coming. At that instant deceased started back, grabbed the team, which was then on the track, and pushed and backed them and the wagon off the crossing. At the time deceased was struck the rear wagon wheels were up against the bank. When the deceased ran back to the horses Elmer started to pull on the lines as •quick as he grabbed the team. Deceased got the team entirely off the track when the train was seventy-five or one hundred feet away, and as he did so Elmer jumped off the wagon. As the locomotive passed, the horses reared and swung around, and the locomotive struck deceased a glancing blow, throwing him about forty feet east of where he was struck. The train was running a fraction over seventy feet a second. The blow killed the deceased, who at the time of his death was forty-four years of age and in good health. He left him surviving his widow and four children. It is strenuously argued on the part of the appellant that .a verdict should have been directed for the reason that there was no proof of negligence on the part of the defendant; that .failure to blow the whistle and ring the bell as the train approached the Red Wing crossing and failure to blow the whistle and ring the bell while approaching the private crossing where the accident happened was not negligence. We shall spend no time on the negligence charged respecting the failure ■to give any warning as the train approached the public cross — 474 — ing, but the question whether there was negligence in failing to ring the bell or sound the whistle when approaching the private crossing will be considered. Ro claim is made by defendant that the whistle was blown or the bell rung as the train approached the private crossing, and the question is whether the defendant, under the circumstances of this case, was guilty of negligence in failing to do so. Ro statutory duty existed to signal for the private crossing, and the question to be determined is whether the defendant was bound to-do so at common law under the circumstances of this case. The private crossing was constructed at the time the railroad was built some twenty years before the injury, and af-terwards maintained by defendant. It had been used by the-occupiers of the Seater farm and some others. The evidence-shows that this private crossing was dangerous because of the overhanging hill, the curve, the difficulty in hearing an approaching train, as well as the physical condition of the crossing. There is evidence that at the speed the train was running it would be on the crossing in about ten seconds from the time it could be seen by a person standing on the crossing. The unwritten law, therefore, in the absence of statute, made-it the duty of defendant to signal the approach of the train, if in the exercise of its duty ordinary care required it to do> so. Duffy v. C. & N. W. R. Co. 32 Wis. 269; Seefeld v. C., M. & St. P. R. Co. 70 Wis. 216, 35 N. W. 278; Kujawa v. C., M. & St. P. R. Co. 135 Wis. 562, 116 R. W. 249; Winstanley v. C., M. & St. P. R. Co. 72 Wis. 375, 39 R. W. 856; Eilert v. G. B. & M. R. Co. 48 Wis. 606, 4 N. W. 769; Swift v. Staten Island R. T. R. Co. 123 N. Y. 645, 25 N. E. 378; Hartman v. C. G. W. R. Co. 132 Iowa, 582, 110 N. W. 10; Nichols v. C., M. & St. P. R. Co. 125 Iowa, 236, 100 N. W. 1115. In the instant case the court is of opinion that whether the-defendant was guilty of negligence in failing to signal the approach of the train before reaching tire private crossing was a question for the jury. — 475 — It is further argued by counsel for appellant that deceased was guilty of contributory negligence in putting bimself in a place of danger in going upon tbe crossing and in failing to back bis team a sufficient distance from tbe track, and that be failed to exercise care commensurate with the known danger. It is said that deceased in bis own judgment considered be bad reached a position of safety, was making no effort to push tbe borses further back or to step to one side, and Walters v. C., M. & St. P. R. Co. 104 Wis. 251, 80 N. W. 451; Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360; Eastwood v. La Crosse City R. Co. 94 Wis. 163, 74 N. W. 360; and Abbot v. Kalbus, 74 Wis. 504, 43 N. W. 367, are relied upon on this, point. Tbe cases cited do not rule tbe instant case in favor of appellant. In Walters v. C., M. & St. P. R. Co., supra, there was negligence in failing to look for the train. In Flaherty v. Harrison, supra, tbe case turned on tbe sufficiency of the evidence to carry tbe case to tbe jury on tbe claim of negligent ringing of tbe bell which frightened the' borses. Eastwood v. La Crosse City R. Co., supra, involved tbe question of negligence in failure to stop a car on tbe appearance of danger to any one near tbe track. In Abbot v. Kalbus, supra, it was ruled that there was no evidence to cany tbe case to tbe jury on tbe question of tbe operation of defendant’s locomotive. Tbe evidence in tbe present case is. ample to support a finding that tbe deceased exercised ordinary care in endeavoring to get bis team as far off tbe track as be could in tbe few seconds be bad to do it. ITe did not voluntarily put bimself or bis team in a place of danger. He-was required to act instantly and without reflection or deliberation, since tbe train was practically, upon him before be saw or beard it and going at a very high rate of speed. Moreover, there is evidence that in view of tbe narrow passageway for tbe wagon and tbe high bank in tbe rear be backed the-borses as far as be could in bis hurried effort to get them off tbe track. There is also ample evidence to support a finding that there was no negligence in failure to look or listen, or in476 the movements of the team after it entered, upon the right of way. It is also urged that the deceased was guilty of negligence in pushing the team off the track in the presence of danger in order to save his property, and that it was not done to save his son who was driving the team. It is said that the ■deceased rushed into danger for the purpose of saving his property, and that under all the authorities, in the absence of some imperative public or private duty, the attempt to save property would not excuse his action. It is not necessary to •decide, and we do not decide, whether the deceased under the ■circumstances would have been justified in putting himself in the position in which he did merely to save his property, because there is sufficient evidence to support the verdict that the safety of his son was the impelling motive which induced him to rash the team off the track. And there is evidence that the train struck deceased at or about the time the boy jumped from the wagon. The safety of the boy was sufficient justification for the acts of the deceased in getting the team off the track. Mobile & O. R. Co. v. Ridley, 114 Tenn. 727, 86 S. W. 606; Linnehan v. Sampson, 126 Mass. 506; Corbin v. Philadelphia, 195 Pa. St. 461, 45 Atl. 1070, 49 L. R. A. 715; Cottrill v. C., M. & St. P. R. Co. 47 Wis. 634, 3 N. W. 376; Pennsylvania Co. v. Langendorf, 48 Ohio St. 316. It is argued that the proximate cause of the injury was the fright of the horses, not the failure to signal the approach of the train. We do not regard this contention tenable. Sarles v. C., M. & St. P. R. Co. 138 Wis. 498, 120 N. W. 232; Kujawa v. C., M. & St. P. R. Co. 135 Wis. 562, 116 N. W. 249. The evidence shows that the deceased used caution in going upon the crossing. He stopped at the upper gate and listened for a train, went on the crossing, and looked and listened. No train was in sight or could be heard, the evidence tends to show. In so far as the answers of the jury to the questions in the special verdict are material to this case, in our view of it, — 477 — they are supported by the evidence, and hence the motions; to change the answers were properly denied. The evidence respecting signals for the Red Wing crossing was, even if improperly admitted, not prejudicial, and the-evidence tending to show that no signal was given on approaching the Seater or private crossing was properly admitted. Nor was there error in refusal to submit to the jury the question requested respecting the duty of the deceased to constantly look up the track in the direction from which the train was coming. The court is of opinion that the judgment below is right and must be affirmed. By the Court. — The judgment is affirmed. MARSHALL, J., dissents.