Smith v. Chi., M. & St. P. Ry. Co.

• Decision Date: 27 November 1908
• Citation: 118 N.W. 638,137 Wis. 97
• Court: Wisconsin Supreme Court
• Parties: SMITH v. CHICAGO, M. & ST. P. RY. CO.

137 Wis. 97

118 N.W. 638

SMITH

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Nov. 27, 1908.

Dissenting opinion filed Nov. 27, 1908.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Personal injury action by Charles L. Smith against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss.

Among other references upon the part of the appellant were the following: Hain v. Railway Company, 116 N. W. 20;Goldmann v. T. M. E. R. & L. Co., 123 Wis. 168, 101 N. W. 384;Schroeder v. Wis. Cent. Ry. Co., 117 Wis. 33, 93 N. W. 837;Guhl v. Whitcomb, 109 Wis. 69, 85 N. W. 142, 83 Am. St. Rep. 889;Koester v. C. & N. W. Ry. Co., 106 Wis. 460, 82 N. W. 295;Schneider v. C., M. & St. P. Ry. Co., 99 Wis. 378, 75 N. W. 169.

Among other references upon the part of the respondent were the following: Piper v. C., M. & St. P. Ry. Co., 77 Wis. 247, 46 N. W. 165; section 1809, St. 1898; Roedler v. C., M. & St. P. Ry. Co., 129 Wis. 270, 109 N. W. 88;Gower v. C., M. & St. P. Ry. Co., 45 Wis. 182;Tiborsky v. C., M. & St. P. Ry. Co., 124 Wis. 243, 102 N. W. 549;Holmes v. Fond du Lac, 42 Wis. 282;Beggs v. C., W. & M. Ry. Co., 75 Wis. 444, 44 N. W. 633;Ward v. C., St. P., M. & O. R. Co., 85 Wis. 601, 55 N. W. 771;Clifford v. M., St. P. & S. St. M. R. Co., 105 Wis. 618, 81 N. W. 143;Valin v. M. & N. R. Co., 82 Wis. 1, 51 N. W. 1084, 33 Am. St. Rep. 17.

Winslow, C. J., and Siebecker, J., dissenting.C. H. Van Alstine and H. J. Killilea, for appellant.

Tullar & Lockney, for respondent.

TIMLIN, J.

The respondent brought this action to recover damages for personal injuries suffered at the crossing of a highway by defendant's railroad, and the following facts appear without dispute: On the 17th day of May, 1906, in the forenoon, respondent, while going home from Menominee Falls, was injured at Haylet's Crossing by means of a collision between his team and appellant's locomotive. At Haylet's Crossing appellant's railroad ran in a northeasterly and southwesterly direction, and the highway ran in an easterly and westerly direction. Seven hundred and fifty feet along the railroad track northeast of Haylet's Crossing there was another highway crossing called Zink's Crossing. The highway at Zink's Crossing ran in a northerly and southerly direction, and turned west at Haylet's Corner, and continued west to and beyond Haylet's Crossing. In the highway east of Haylet's Crossing and west of Haylet's Corner there was a bridge over a small stream. From the center of this bridge to the center of the railroad track was 77 feet. The highway at the bridge was somewhat higher than the railroad track. The day was bright, but windy. The wind was in the southwest, and dust was flying. The traveled track of the highway between the bridge and the railway crossing was about 16 feet in width and a little downhill, and on each side of this traveled track the land was low and marshy. Any one traveling at that time from Haylet's Corner to Haylet's Crossing had for the entire distance an unobstructed view along the railroad track to Zink's Crossing 750 feet and some distance beyond. Respondent was driving a team of highlifed horses hitched to a light wagon. His wife and child were with him on the same seat, and he was sitting on the right-hand side. He passed Zink's Crossing, turned west at Haylet's Corner, and proceeded to the bridge. After reaching the bridge, he stopped his horses when the hind wheel of the wagon was about in the center of the bridge. He was then sitting in the wagon about 8 feet west of the center of the bridge, and the horses' heads were about 10 or 12 feet west of him. The distance from the center of the bridge to the center of the railroad track being 77 feet and the width of the track 4 feet 8 inches, the heads of respondent's horses were about 53 feet 8 inches from the east rail of the track when respondent started his team from the bridge. He knew the train was due, and he looked both ways and listened for the train before he started from the bridge, but he did not look or listen again until his horses were actually upon the track. He gave all his attention to his team, which was going at the rate of three miles per hour, and were dancing. When he stopped on the bridge, he looked both ways along the track, and listened for an approaching train, but neither saw nor heard any, and then started on toward the track, his team going on a good fast walk down the hill and dancing, and, after leaving the bridge and until he got to the railroad, his attention was directed to the team because they wanted to go. There is evidence to support a finding that no bell was rung or whistle sounded by the train approaching from the northeast. Just as the horses were about stepping over the first rail, plaintiff heard a rattle that sounded like the cars. He looked up, and the train was close on him, and he tried to back off the track and shouted to let the engine men know he was there, and at this moment the locomotive struck the horses near the fore part of their bodies, carried them down the track, and threw part of the wagon and the plaintiff against the side of the locomotive, injuring him severely. It is conceded that there was evidence to support the verdict finding the defendant negligent, and only two questions are raised upon this appeal; the first being whether or not upon the facts above set forth the plaintiff was guilty as matter of law of contributory negligence so that a nonsuit should have been granted or a verdict directed for the defendant; and, second, whether the court erred in refusing to instruct the jury as requested by the defendant.

We are unable to discover any substantial ground of difference helpful to the respondent between this case and the case of Marshall v. Green Bay & W. R. Co., 125 Wis. 96, 103 N. W. 249, and Hain v. C., M. & St. P. Ry. Co., 116 N. W. 20. In each of the three cases the railway crossed the highway at an acute angle, the person injured was driving a team toward the crossing, and failed to continue to look and listen up to the time the horses stepped upon the track, having looked and listened some distance back, 40 or 50 feet in the Marshall Case, 4 or 5 rods--that is, 66 or 82 1/2 feet--in the Hain Case, and 53 feet in the instant case. The writer and Mr. Justice Siebecker dissented in the Hain Case because we thought that within the rule of Guhl v. Whitcomb, 109 Wis. 69, 85 N. W. 142, 83 Am. St. Rep. 889, the attention of the plaintiff was irresistibly diverted from the approaching train by the danger signals from the freight train on the passing track headed for the crossing (see diagram). When Mrs. Hain was 40 feet...