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

WiNft.ow, C. J. Sec. 1809, Stats., provides, among other things, that if a railroad company “shall erect, maintain and operate” gates at a city highway crossing, or “shall maintain a flagman thereat,” it may run a train or locomotive at a speed not exceeding thirty miles an hour over such crossing, otherwise not at greater speed than twelve miles an hour, unless it maintains an electric alarm bell at the crossing, in which case the speed may be not exceeding twenty miles an hour. The section further provides that, if injury or death is caused by failure to comply with these provisions, slight want of ordinary care on the part of the person killed or injured shall not bar a recovery. Assuming, without deciding, in the present case that the defendant satisfied the requirements of the statute by placing a flagman at the crossing when the gates were not in operation and hence was guilty of no negligence in operating its locomotive at any speed not exceeding thirty miles an hour, then the only negligence shown or found on the part of the defendant is the negligence of the flagman in not giving reasonable warning of the approach of the engine, and as against such negligence the lack of ordinary care on the part of the traveler is a complete defense. The crucial question, therefore, is whether such a lack was shown as matter of law or whether the question was one for the jury. The appellant relies upon the well established principle that it is the duty of a traveler to look and listen when he approaches a railway track at the last opportunity before entering the zone of danger, and that such a circumstance as [379] gates being raised, which, are customarily lowered when a. train is about to pass, does not excuse failure to perform his duty. White v. M., St. P. & S. S. M. R. Co. 147 Wis. 141, 133 N. W. 148, and cases cited. The civil judge applied this rule-to the case and held that the evidence demonstrated that the plaintiff did not look at the last opportunity before entering the zone of danger. We have no disposition to question this rule, but surely it cannot apply to its full extent where an affirmative invitation to cross is given to the traveler by the railroad company. If one approaches a crossing where a flagman is stationed and there are a number of tracks and receives from the flagman a signal to cross, he certainly cannot be obliged to exercise the same abundant caution until he has crossed the last track that he would if he had received no signal. If so, why have the flagman at all ? In the present case the facts were not merely that the gates were up, but that there were lanterns hanging on them just as if they were in use. The plaintiff testified that he saw these lanterns. They doubtless conveyed the impression to his mind that the gates were in operation but were elevated because no train was approaching. The flagman gave no warning until the plaintiff was very close to the track on which the engine was approaching. Under such circumstances it seems to us that the plaintiff might well believe that an affirmative assurance of safety had been given him by the railroad company and that ordinary care did not require him to look in either direction after his first look when he passed the freight car. We are not to be understood as intimating that the plaintiff could be excused from looking' at least once as he entered upon the crossing, but after having so looked and seeing nothing, we think it was fairly a jury question whether ordinary care required him to keep on looking until he had crossed all the tracks, in view of the seeming assurance of safety which the uplifted gates bearing lanterns and the lack of warning by the flagman gave him. [380] We think the testimony of the plaintiff that he did look as soon as he passed the freight ear and saw nothing is not incredible in view of the other testimony in the case as to the lack of lights on the engine and signals therefrom. By the Court. — Judgment affirmed.