Waitkus v. Chi. & N. W. Ry. Co.
Decision Date | 12 May 1931 |
Citation | 236 N.W. 531,204 Wis. 566 |
Parties | WAITKUS v. CHICAGO & N. W. RY. CO. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Municipal Court of Kenosha County; Calvin Stewart, Judge. Reversed.
Action by Daisy Waitkus, plaintiff, commenced on the 7th day of November, 1929, against the Chicago & Northwestern Railway Company, defendant. From a judgment rendered in favor of the plaintiff on the 29th day of July, 1930, the defendant appeals.
J. F. Baker, of Milwaukee, for appellant.
Robert V. Baker, of Kenosha, for respondent.
The husband of the plaintiff was killed on the 16th day of April, 1929, while crossing defendant's tracks on a public highway in the city of Kenosha. This action is brought to recover damages sustained by the plaintiff by reason of such death. There was a special verdict of the jury upon which judgment was rendered in favor of the plaintiff. The appellant assigns numerous errors, among which is that a nonsuit should have been granted, or, in lieu thereof, a verdict directed in favor of the defendant because of the contributory negligence of the deceased. As we decide the question raised upon this assignment of error in favor of the defendant, it will be unnecessary for us to consider other questions presented and argued.
[1] The law imposes upon the traveler on a highway crossing a railroad track the duty of exercising his senses for the purpose of ascertaining whether he may cross the track in safety. The presence of the railroad track itself is a warning of danger. Because, in order to discharge their public functions, railroad trains must be operated at a high rate of speed, because they are maintained upon a fixed track, and because, owing to physical laws, they cannot be stopped quickly, the law imposes upon the traveler the duty of exercising his senses of sight and hearing in order to avoid the collision which is certain to result if the traveler and the train reach the same spot at the same moment of time. The condemned man goes to the gallows with certain trepidation, yet he goes to no more certain death than does he who places himself in front of an on-rushing train. Since a train may be coming at any moment the entrance upon a railroad track is or should be a matter of genuine solicitude. As the operation of the train cannot be accommodated to the movements of the traveler, the traveler must yield to the movements of the train. Therefore it has come to be as well settled in the jurisprudence of this country that the traveler must exercise his senses to discover the approach of a train when he attempts to cross a railroad track as that a contract requires a consideration, and probably with greater reason. This proposition has recently found virile and distinguished expression by the pen of Mr. Justice Holmes in B. & O. Ry. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 25, 72 L. Ed. 167, 56 A. L. R. 645, in the following language:
It is conceded that the crossing in question was a dangerous one. The deceased was going from west to east. The tracks ran north and south. There were three tracks. The first track approached by the deceased was a service track, upon which there was located a box car in close proximity to the street, which obscured his view to the north. The next was a main track upon which north-bound trains were operated. The next and the one upon which the deceased met his death was the one upon which south-bound trains were operated. The train which struck the deceased was going south at a rate of speed estimated between 40 and 60 miles per hour. The deceased was riding in a Ford automobile. According to the testimony of an eyewitness, he first turned south on a traveled track adjacent to the west side of the right of way. After proceeding a short distance in that direction he backed his car back on the street and again headed it in an easterly direction. He paused momentarily after backing his car and then proceeded at a uniform rate of speed of between 6 to 8 miles an hour until he was struck by the on-coming train. When he was 24 feet from the center line of the track upon which he was struck, he could have seen 600 feet to the north, the direction from which the train was coming. At a distance of 23 feet he could have seen 1,300 feet, and at a distance of 22 feet he could have seen a distance of a half a mile or more. The clearance between the front of the automobile in which the deceased was riding and the overhang of the train was somewhat less, the exact distance not appearing in the evidence. But that is not very material, if indeed it is material at all.
It was the duty of the deceased to have his automobile under such control that he could have brought it to a stop before he was precipitated into a situation which meant his instant death. It is not too much to say that the actual physical situation was such as to have enabled him to stop his automobile, going at the rate of 6 or 8 miles an hour, after he would have discovered the train had he looked. If this be not true, then he was derelict in the performance of the duty which the law imposes upon him in operating his automobile at a rate of speed which was...
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