Swanson v. Lake Superior Terminal & Transfer Railway Co.

The following opinion was filed December 3, 1929: Rosenbekry, C. J. In the view which we take of this case it is not necessary for us to consider all of the questions raised by counsel. If it appears as a matter of law that the failure of plaintiff to exercise ordinary care in accordance with the finding of the jury was more than a slight want of ordinary care, the judgment cannot stand and other questions become immaterial. At the close of the case and-upon motions to direct the verdict, the trial court, although he permitted the verdict to stand, was in great doubt upon the question of contributory negligence and took the verdict in order that the matter might be fully disposed of if there was an appeal to this court. In disposing of this motion the court said: “Unless the plaintiff, Swanson, was guilty of more than a slight want of ordinary care contributing to his injury, he is entitled to recover. The jury found in plaintiff’s favor on that question. I am not unmindful of the cases in which it has been held that want of ordinary care in approaching a railroad track amounted to more than a slight want of ordinary care. However, it does not seem to me that the situation in any of those cases was just like the situation in this case. Here the evidence as to what plaintiff did is not in dispute. He was mindful of his danger and he exercised some care. I think that the finding of the jury that there was not more than a slight want of ordinary care on [496] the part of the plaintiff was a result that they might reasonably reach from the evidence, and that such finding ought not to be set aside by the court.” No doubt all right-thinking people are sympathetically moved by the situation of the plaintiff in this case. He was sixty-three years of age at the time of the accident and was earning about $130 a month. The constant moving of cars over the tracks in question constituted a hazard from which persons crossing them were constantly in peril, but the entire situation, including the method of work, the number of cars which passed back and forth over the tracks daily, the whole situation was fully within the knowledge of the plaintiff at the time in question. The engine was engaged in pushing eight or ten cars onto a dock beyond that on which the plaintiff worked. A man was on top of the head car but not in a position to warn the plaintiff in the latter’s situation. The plaintiff did hear the man yell just before he was struck. It was then too late for the plaintiff to avert the disaster and equally too late for the servants of the defendant to stop the train. By the statement of the plaintiff he mounted his bicycle at a point 59.8 feet from the track on which he was injured, at a point where he was unable either to see or to hear the movement of the cars in question. The observation made by him at that point afforded him no protection whatever from the train, which was then a short distance from the crossing and in motion. He rode through a narrow passageway fourteen feet in width the entire distance, and did not dismount when he reached a point beyond the cars standing on the Northwestern Fuel Company tracks next to the Terminal track. He looked to the right and then to the left and then was struck. It seems to us indisputable that he failed to look at any point where the view would afford him the slightest protection. There was ample space between the fourth Northwestern Fuel Company track and the track on which [497] he was injured for him to have stopped in a place of safety at a point where he could see and observe what if anything was being done upon the tracks which he still faced. He did not do this. Failure to 'make such an observation has been many times held to be more than slight want of ordinary care. Ordinary care in approaching and crossing a railway track upon which there are or may be rapidly moving trains, involves the use of a considerable degree of caution. The act of the plaintiff in attempting to make the crossing in the manner in which he did at the time and place in question was merely taking a chance that at that particular moment no moving car would be upon the track. He admits that at the point where he started he could neither see nor hear, although it is undisputed that the train was at that moment upon the Terminal track and in motion. The trial court put his finger upon the only possible distinction that can be made when he said that the plaintiff exercised some care and that the situation in this case was not exactly like the situation in other cases. That statement applies to almost every case. Whatever dangers were inherent in the situation were all known to and appreciated by the plaintiff, and if the crossing was highly dangerous it required a corresponding degree of care on the part of one who knew the danger. To say that the failure of the plaintiff to exercise ordinary care is in this case no more than slight want of ordinary care is to say that one may proceed 'without taking any precautions or exercising any care at a time and place when .and where the exercise of that care may enable him to avoid injury. The plaintiff testified that he could stop his bicycle instantly. If he had stepped from it for a single moment at any point beyond the overhanging of the cars on the fourth Northwestern Fuel Company track, the disaster would have been averted. Under these circumstances the plaintiff was guilty of contributory negligence which defeats his right to a recovery. Roth v. Chicago, M. & St. P. R. Co. [498] 185 Wis. 580, 201 N. W. 810; Baltimore & O. R. Co. v. Goodman, 275 U. S. 66, 48 Sup. Ct. 24; Dax v. Chicago, M. & St. P. R. Co. 185 Wis. 432, 201 N. W. 736, and cases cited. By the Court. — Judgment is reversed, with directions to dismiss the complaint. The following opinion was filed December 10, 1929: