McKinney v. Chi. & N. W. Ry. Co.

• Decision Date: 16 March 1894
• Citation: 58 N.W. 386,87 Wis. 282
• Parties: MCKINNEY v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

87 Wis. 282

58 N.W. 386

MCKINNEY

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

March 16, 1894.

Appeal from circuit court, Kenosha county; F. M. Fish, Judge.

Action by John McKinney against the Chicago & Northwestern Railway Company for damages for personal injuries. Judgment of nonsuit. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by NEWMAN, J.:

Action for personal injury at a railroad crossing. On November 28, 1892, the plaintiff started from his home to drive to the city of Kenosha, four miles away. It was a cold, windy day. He rode in a covered buggy, with side curtains on. He was about 80 years old. He was blind of one eye, and his hearing was dull. He had lived in the neighborhood for many years, and was entirely familiar with the situation. He drove a steady horse, that was not afraid of cars. His road was one of the principal thoroughfares leading to the city from the south. At a point in the route the highway crossed the railroad at an acute angle, so that a train approaching from the south would be behind, and a little to the right of, him. When he was approaching this crossing he saw a gravel train also approaching from the south. He drove on. When he was near the crossing he heard a second train--a freight train--approaching, also from the south. He waited until this second train had passed. Then, without looking or listening for other trains, he drove upon the railroad track, was struck by the engine of another train approaching from the south, and was injured. He testified: “When the second train was past, I didn't look around at all. I didn't hear it at all. I had seen that second train, and the road was open, and I put through. I didn't pay any further attention. I seen the road open for me, and I put right on.” There was no obstruction to prevent a view of the coming trains. The circuit court rendered judgment of nonsuit, from which the plaintiff appeals.

Winslow, J., dissenting.

Quarles, Spence & Quarles, for appellant.

Winkler, Flanders, Smith, Bottum & Vilas, for respondent.

NEWMAN, J. (after stating the facts).

If the plaintiff had looked in the direction of the coming train, he would have seen it coming, and would have avoided injury. The rule of the law is well settled. It needs no citations. One who is about to cross a railroad track is bound to be alert with his senses. The track itself is a danger signal. He must both look and listen. If, by looking, he could...