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

RosbNBebey, J. It is claimed that the circuit court erred (1) in restoring the jury’s answer to question 3, and in failing to change the answer to question 5 so as to show that plaintiff was guilty of contributory negligence. The accident occurred on the 26th day of January, 1917, at a time when the thermometer registered ten degrees below zero, in consequence of which the plaintiff had his head wrapped in heavy clothing. There is ample evidence in the record to sustain the finding that the engineer did not blow the whistle and that the bell was not rung. The train was moving at a speed of ten to twelve miles an hour and was composed of an engine and eight cars, five loaded with coal and three empties. It is claimed by the defendant that plaintiff’s witnesses did not hear the blowing of the whistle or the ringing of the bell because of the noise which the engine was making. On the part of the plaintiff it is claimed that shortly before the accident he had looked to see whether a train was approaching and that none was coming and that he heard none. If the plaintiff had been walking upon the right of way of the defendant company and had been injured under the circumstances shown by the evidence in this case it might be [446] fairly said that he was guilty of contributory negligence as a matter of law. In this case, however, the plaintiff was not walking upon the light of way of the defendant company, but upon a public street in a place prepared for pedestrians; and while this did not absolve him from the duty of exercising ordinary care for his own safety, we think under all the facts and circumstances shown by the evidence in this case it was a question for the jury whether or not he was in the exercise of ordinary care in walking as he did. Both the civil court and the circuit court are of opinion that he was not guilty of contributory negligence as a matter of law in failing to see and hear the approaching train, and we cannot say that they are clearly wrong. ■By the Court. — Judgment affirmed.