Merrill v. Chicago, North Shore & Milwaukee Railroad

Rosenberry, J. It will be noted'that question 3 of the special verdict inquired whether or not the street car was traveling at a greater rate of speed than fifteen miles per hour as it approached Avery street. This question was framed with reference to an ordinance of the' city of Kenosha, the material provisions of which are as follows: “No motorman ... in charge of an interurban car . . . propelled by electricity, shall run, drive, propel, or operate any such car upon or along any railroad track laid and maintained on any public street ... at a greater rate of speed than-fifteen- miles per hour.” The court correctly construed this ordinance as applying to Avery street, although the tracks of the defendant ran across Avery street and not within and parallel with it. People’s R. T. Co. v. Dash, 57 Hun, 587, affirmed 125 N. Y. 93, 26 N. E. 25, 10 L. R. A. 728. There is abundant evidence to sustain the answer of the jury to the third question. The negligence of the defendant company, therefore, must be regarded as fully established. The serious question in the case is whether or not the driver of the automobile in which the deceased was riding [467] was guilty of a want of ordinary care at the time and place of the accident. The driver of the automobile was in the possession of all his faculties and had good hearing and eye-sight. The car in which he was driving could be easily stopped. The street was even with the tracks of the company and had a width of fifty feet. The day was warm and, although there was a slight mist, objects could be readily seen. It was eighteen feet from the west rail of the west track to the east rail of the switch track upon which the two freight cars were standing. The driver testified as follows: “1 looked to see if a car was coming. The windshield was down and I reached up, looking over. I was then right opposite the switch track, going about eight miles an hour. After leaving the switch track I looked north, first to see if I could see a car coming. Then I did look south, hut the car was right on me. When I was opposite the switch track I looked south. I don’t know how far I could see. Not as far as Salem avenue” (the next street to the south parallel with Avery street). On behalf of the defendant it is argued strenuously and with much force that had the driver looked at the proper places he must have seen the approaching car. We are not dealing with a situation in this case where the driver did not look and listen, but with a case where he did look and listen but failed to detect the approach of the car by' reason of obstructions to his view. There is evidence from which the jury might have found that the car was approaching the crossing at a very high rate of speed. We cannot set out in detail all of the facts bearing upon the question' of contributory negligence. While the case is not free from difficulty,, we have, after a careful examination of the record, concluded that upon all the facts a jury question was presented. No doubt the evidence would have sustained a verdict finding the driver guilty of contributory negligence, We recognize the established rule covering the [468] conduct of persons approaching a railroad crossing. We think this case is ruled by the principles laid down in Dahinden v. Milwaukee E. R. & L. Co. 169 Wis. 1, 171 N. W. 699, rather than by White v. C. & N. W. R. Co. 102 Wis. 489, 78 N. W. 585. By the Court. — Judgment, affirmed.