Worsley v. Johnson

The following opinion was filed July 3, 1920: Siebecker, J. The principal controversy presented on this appeal pertains to the question of decedent’s contributory negligence. It is stated in appellant’s brief: “It is conceded that upon the issue of defendant’s negligence the state of the evidence was such as to make the question one for the jury.” An examination of the evidence shows that this question was clearly one for determination by the jury. It is, however, strenuously urged that the undisputed facts of the case convict the decedent of contributory negligence and that the jury’s finding that decedent was free from negligence proximately contributing to the injury should have been set aside by the court. The rule declared in Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593, 84 N. W. 823, is invoked as controlling in this case. It is there said respecting the duties of persons approaching railroad crossings: “The rule here is that the duty to see those dangers that are in plain sight and hear those that are plainly within hearing by paying proper attention thereto, is just as absolute as [328] is the duty to look and listen for them, and that a jury cannot be permitted to say that a person, called upon to perform that duty, did not see or hear such dangers, and base a verdict thereon.” There is a conflict in the evidence as to whether or not the usual and customary crossing signals, namely, the sounding of the whistle and the ringing of the crossing bell, were given, and whether the crossing lights near the track were in operation. There is also a conflict in the evidence as to whether or not the motorman applied the brake to slacken the speed of the car after the team was in his view on the crossing and whether or not the car was approaching the crossing at a high and dangerous rate of speed. These issues of fact, upon the evidence adduced, were proper inquiries for determination by the jury, and on appeal it must be assumed that the jury resolved them most favorably to plaintiff’s claims. In this view the case presents the following conditions: The decedent approached the crossing from a northeasterly direction at about 7 o’clock in the evening of September 18th (a clear evening) ; he was riding on a lumber wagon, sitting on a seat elevated on a double box; the crossing lights were not lit; no warning signals were given of the approaching car, which was going at a speed of about fifty miles per hour with a headlight that cast a light about 1,000 feet forward on the track; the team was traveling at the rate of about four miles per hour. It appears that the ground in the vicinity of the crossing is practically level and open. One hundred and sixty feet from the Asylum avenue crossing is defendant’s station for boarding and alighting from trains; it is located nine feet from the easterly rail of the track on which the car in question was approaching from the south; the station building is eight feet in width and twelve feet long north and south; the trolley poles are six feet to the east from the nearest rail of the track in question and are from a foot to sixteen inches in diameter, placed 1,000 feet apart. About 228 feet to the [329] south of Asylum avenue is an apple tree, approximately twenty-five feet high, its branches spreading about' twenty-four feet and being well branched close to the ground, while 270 feet farther south are two more apple trees of like size. These trees are forty-eight feet from the east track. South of the Durand road crossing, which is 650 feet from Asylum avenue, the railroad tracks curve so that a car cannot be seen from the Asylum avenue crossing until it is near the Durand road crossing. The decedent, approaching the track from the northeast, had his view of an approaching car intercepted by the station building and the trolley poles from a point forty-six feet from the east rail on this crossing until he reached the inner line of the trolley poles. From points eastward of this forty-six-foot intercepted view decedent had an unobstructed view of approaching cars from Asylum avenue for a distance of about ninety feet. If decedent looked for the approaching car within the ninety-foot distance it is not a certainty that he could have seen the car approaching because of the curve of the track. If the jury believed that he looked and saw no car approaching while traveling this ninety feet, then can it be said as a matter of law that he was guilty of contributory negligence in continuing his course upon the forty-six feet of obstructed view before reaching the track, without stopping to ascertain if a car was coming? It is strenuously argued that the brilliancy of the headlight on the approaching car must have been visible to him after the car passed the curve south of Durand road because it cast its headlight to the crossing for a distance of from 600 to 800 feet. In view of the conditions surrounding-him while he traveled the last forty-six feet before reaching the track, it is not clear that ordinary prudence required him to stop and look for approaching cars. These surrounding conditions distinguish the instant case from Groesbeck v. C., M. & St. P. R. Co. 93 Wis. 505, 67 N. W. 1120, and similar cases where the person approaching the crossing had [330] an unobstructed view of tracks and approaching trains for considerable distances before entering the zone of danger. We are persuaded that the court properly submitted the issue of decedent’s contributory negligence to the jury for determination. Appellant urges an exception to the following instruction: “There is no direct evidence as to what deceased did or failed to do in approaching the crossing at the time in question. You are entitled, under the circumstances, to consider the natural instinct of self-preservation and natural disposition which leads men in their sober senses to avoid danger and to preserve life.” While the facts and circumstances disclosed do not tend to raise the inquiry whether decedent acted in reckless disregard of imminent danger, still this instruction upon the issues submitted to them cannot be held to have misled the jury in considering the evidence material to the issue of decedent’s contributory negligence, and hence was not prejudicial to the appellant’s case. Among the questions requested by defendant tó be included in the special verdict is the following: “Was the crossing-signal device operating as the car in question approached the Asylum avenue crossing?” It is urged that the general question submitted, namely, “Was there any want of ordinary care on the part of the defendant in the operation of its car at the time and place in question?” does not inform the .court with sufficient certainty upon what grounds the jury found the defendant guilty of negligence, and that the requested inquiry should have been Submitted to aid the court in interpreting the verdict. The court in connection with the issues of the defendant’s negligence specifically called attention in its instructions to the various alleged negligences of the defendant and informed the jury that they were to consider1 all of them in answering the question, thus bringing-to their attention the issues of negligence presented by the pleading and the evi [331] dence. It must be presumed that the jury heeded these instructions in their deliberation on these issues and that they unanimously agreed that the defendant was negligent in one or more of the respects charged in the complaint, and that the negligence found was the proximate cause of the collision. We discover no reversible error in the record. By the Court. — The judgment appealed from is affirmed. The following opinion was filed July 10, 1920: