Hanson v. Chippewa Valley & Northern Railway Co.

[109] Tbe following opinion was filed. April 3, 1912: Marshall, J. Tbe foregoing statement leaves but little, if anything, wbicb need be said in deciding this case. Appellant having testified that be neither looked nor listened for an approaching engine or car when entering and walking upon the railway track, and been corroborated by all physical and other circumstances affecting the case, how could the trial court have well done otherwise than change the answer of the jury which was directly contrary thereto ? It is rather unexplainable that the question was submitted to the jury at all. Such submission furnishes about the only explanation there is why the jury answered as they did. They regarded the attitude of the court, and rightfully so, as considerately indicating that the evidence might probably warrant a finding either way. It was the duty of the court, otherwise, to withdraw the matter from the jury. The result seems to have moved the judicial mind to a more careful consideration of the matter and the conclusion being reached that there was no substantial basis in the evidence for the answer of the jury to rest upon, with which we agree. In view of the admitted fact' that appellant proceeded in the face of danger up to the instant of the accident without thought for his personal safety, and under circumstances, which have ,been held over and over again, should have efficiently aroused such thought, we cannot well say the trial court was wrong in holding, as matter of law, that he was guilty of contributory negligence. True, there are some circumstances shown by the evidence which might fairly be regarded as differentiating the case from the ordinary one of a licensee being injured while walking upon a railroad track without using his faculties for seeing and hearing to avoid colliding with moving cars; but they are outweighed by other circumstances, particularly the presence of smoke and steam preventing efficient performance of the duty to look out for danger and the entire absence of ex [110] cuse for taking tbe particular way of reaching tbe boarding bouse wben there were other ways, just as convenient and perfectly safe. On tbe whole, no good reason is perceived why tbe decision of tbe trial court should be disturbed. If the matter were even involved in fair doubt, that deference which is due to the trial jurisdiction would require the doubt to be resolved in favor of affirming the judgment. By the Court. — Judgment is affirmed. TimuiN, J., took no part. A motion for a rehearing was denied June 4, 1912.