Guhl v. Whitcomb

• Decision Date: 01 February 1901
• Citation: 85 N.W. 142,109 Wis. 69
• Parties: GUHL v. WHITCOMB ET AL.
• Court: Wisconsin Supreme Court

109 Wis. 69

85 N.W. 142

GUHL

v.WHITCOMB ET AL.

Supreme Court of Wisconsin.

Feb. 1, 1901.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by Bertha Guhl against H. F. Whitcomb and others, receivers, etc. From a judgment for plaintiff, defendants appeal. Reversed.

Action for personal injuries received by plaintiff about five miles south of Oshkosh, at a crossing of a north and south highway with the Wisconsin Central Railroad, which at that point ran so nearly north and south that the angle of crossing was only 16 degrees. Plaintiff, a girl 19 years of age, resided with her father about a quarter of a mile south of the crossing, and between the highway and the track. On the 28th of March, 1896, she started from her father's house northward on her bicycle, and rode to the crossing of an east and west highway about half way to the railroad crossing, where she dismounted to cross a mud puddle. She then looked to the eastward and southward towards the track, of which she could see about a quarter of a mile south of the crossing. She mounted her wheel, and proceeded to a point in the highway 105 feet south of the crossing, which point was about 30 feet due west of the track, and about on a line with the right of way fences. Approaching this point, she had noticed a train to the northward, a long way off, which at this point was obscured by fences and elevation in the ground, though she could still see the smoke. At this point she dismounted, and looked southward. The amount of the track south of the crossing within her vision is variously estimated at from 800 feet to 80 rods. She then proceeded on foot, slowly, looking continuously to the northward, her vision of the train in that direction being obscured by the cattle-guard fences until she reached a point a few feet from the track, when she saw a freight train to the northward, which was in fact stationary, and something more than 2,000 feet away, but which she thought was moving slowly towards her. Without looking to the southward, she proceeded slowly to and onto the track, at which moment she was struck by a regular passenger train then due, running at a high rate of speed northward. At any point within the last 50 feet of her course before reaching the railroad track her vision of the track to the southward was unobscured substantially as far as the eye could reach, but at no point subsequent to that 105 feet away had she looked to the southward. She heard the rumble of a train, which she took to be the freight train to the northward of her. There was evidence of failure on the part of defendants' employés to give the requisite signals by whistle or bell. The court instructed the jury, among other things, that “the duty of a traveler before crossing a railway to look both ways and listen depends upon the conditions that he might reasonably expect the coming of a train at any and all times, and that his attention is not reasonably arrested or diverted”; and that they must determine whether it was “ordinary care and prudence on the part of the plaintiff to fail to look to the south, and see this train approaching, when her attention was taken up by watching the train which was coming from the north.” A general verdict was rendered for the plaintiff against defendants' motion to direct one for the defendants, which the court refused to set aside upon motion, and entered judgment for the plaintiff, from which the defendants appeal.

Howard Morris and Thomas H. Gill, for appellants.

Earl P. Finch and Fred Beglinger, for respondent.

DODGE, J. (after stating the facts).

The two principal errors assigned consist in the denial of motion to direct a verdict on the ground of plaintiff's contributory negligence, and in the giving as a rule of law to the jury the sentence quoted in the statement of facts, together with some other instructions further developing the same idea. That sentence is adopted from the opinion in Ward v. Railway Co., 85 Wis. 601, 604, 55 N. W. 771, and, unless later decisions of this court have modified that case, the instruction assailed is not unsupported by authority. A review of the subsequent cases, therefore, becomes necessary. It will be observed that the instruction under consideration exempts a traveler from the absolute duty to look and listen in the absence of either of two conditions: First, that the situation is such that he may reasonably expect the coming of a train at any and all times; and, second, that his attention is not reasonably arrested or diverted. The first of these exceptions to the rule of duty to look and listen, namely, that the situation must be such that one may reasonably expect a train to pass, was repudiated within a year after the decision of the Ward Case in McKinney v. Railway Co., 87 Wis. 284, 58 N. W. 386, under circumstances more strongly inviting its recognition. In the Ward Case the exception was predicated on the fact that a train had just passed, and plaintiff failed to look and see a loose car following it. In the McKinney Case two trains had passed, and plaintiff failed to look and see a third, following more closely than customary and than permitted by rules of the company. Under those circumstances it was said, “The track itself is a danger signal.” In his dissenting opinion Mr. Justice Winslow pointed out that the decision in substance overruled the Ward Case. Again, in Schlimgen v. Railway Co., 90 Wis. 186, 193, 62 N. W. 1045, 1047, was excluded the possibility of legitimate inference that under any circumstances a railway track is safe; the court saying, “A railroad track is, in effect, a standing proclamation to those approaching it that cars are liable to run thereon at any time.” In Nolan v. Railway Co., 91 Wis. 16, 26, 64 N. W. 319, 322, the above language was quoted and applied where plaintiff had observed that the train headed west, which injured him, was stationary at the depot, 200 feet away, engaged in loading freight, and his attention was engaged in looking for a train due from the west. In McCadden v. Abbot, 92 Wis. 551, 66 N. W. 694, plaintiff, a fireman, observing the engine which injured him, stationary, taking on coal, went a short distance, and crossed the track without looking, and was run down because the engine traveled 15 miles per hour, whereas if it had pursued the custom, known to plaintiff, of traveling only 6 miles per hour in that part of the yard, he would have been in no peril. In this situation it was reiterated that the track was a standing proclamation of danger, and that failure to look by...