Ward v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 21 June 1893
• Citation: 85 Wis. 601,55 N.W. 771
• Court: Wisconsin Supreme Court
• Parties: WARD v. CHICAGO, ST. P., M. & O. RY. CO.

85 Wis. 601

55 N.W. 771

WARD

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

Supreme Court of Wisconsin.

June 21, 1893.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by Truman C. Ward against the Chicago, St. Paul, Minneapolis & Omaha Railway Company for injuries received at a crossing. From a judgment for plaintiff, defendant appeals. Affirmed.S. L. Perrin and R. J. MacBride, for appellant.

T. F. Frawley, for respondent.

It was proper to charge that the making of a running switch over a street crossing is a “most dangerous proceeding,” and that it is the duty of the railroad company to take special pains to give the public full warning of the danger. 1 Thomp. Neg. 452; Beach, Contrib. Neg. 223; Brown v. Railway Co., 32 N. Y. 597;Sutton v. Railway Co., 66 N. Y. 243; Kay v. Railway Co., 65 Pa. St. 269; Railroad Co. v. Baches, 55 Ill. 379; Railway Co. v. Dignan, 56 Ill. 487; Railroad Co. v. Garvy, 58 Ill. 83; Railroad Co. v. Hammer, 72 Ill. 347;Murphy v. Railway Co., 38 Iowa, 539;Murphy v. Railroad Co., 45 Iowa, 661; Railroad Co. v. Summers, (Miss.) 10 South. Rep. 63;Fulmer v. Railway Co., 68 Miss. 355, 8 South. Rep. 517;French v. Railway Co., 116 Mass. 537;O'Connor v. Railroad Co., 94 Mo. 157, 7 S. W. Rep. 106;Butler v. Railway Co., 28 Wis. 487;Ferguson v. Railway Co., 63 Wis. 147, 23 N. W. Rep. 123;Howard v. Railway Co., 32 Minn. 214, 20 N. W. Rep. 93; Railroad Co. v. State, 61 Md. 108;Brown v. Railroad Co., 32 N. Y. 600;Ewen v. Railway Co., 38 Wis. 616;Johnson v. Railway Co., 49 Wis. 529, 5 N. W. Rep. 886;Townley v. Railway Co., 53 Wis. 634, 11 N. W. Rep. 55;Farley v. Railway Co., (Iowa,) 9 N. W. Rep. 230; Frick v. Railway Co., 5 Mo. App. 435; Cheney v. Railway Co., 16 Hun, 415.

ORTON, J.

The following are substantially the facts of this case, according to the testimony: The village of Fall Creek, in the county of Eau Claire, has about 500 inhabitants, and one main street running east and west, very much traveled. The defendant's railway runs through the village, and across said street, southeast and northwest. There are three tracks crossing said street, one main track and two side tracks. It was down grade from a considerable distance southeast down to this crossing. There was a switch about 150 feet northwest of the crossing, and the depot is some distance beyond to the northwest. On the 6th day of January, 1891, about 4 o'clock P. M., the plaintiff, who was a farmer living several miles southeast of the village, and about 32 years of age, and having a family, started with his team and empty double wagon from near the center of the village, where he had left his load, to go home by this street, and over this crossing. When he came near the crossing he saw a locomotive and a freight train of 18 or 20 cars approaching it, coming from the southeast, and he stopped his team about 32 feet from the center of the main track, and waited until said train passed by, and he then drove on, and when the team had crossed over the track, a single detached freight car, following the train about 150 or 200 feet behind, running by the impetus given it by the speed of the train and by its own momentum, came upon the crossing without any warning or signal, and unseen by the plaintiff, and struck his wagon in which he was riding and driving, and threw it off the track, and dashed the plaintiff to the ground headlong, and broke his skull in two places and permanently injured and disabled him. This car had been cut off from the train about 1,500 feet back to make what is called a “flying switch” upon a side track, about 150 feet northwest of the crossing. John Roddy, the conductor of the freight train, was on and in charge of this car, and first saw the plaintiff approaching the crossing when his car was from 50 to 70 feet from it. According to his own testimony, he let the car run without using the brakes because he thought he could get over the crossing before the plaintiff reached it. He was standing near the brake, on the forward end of the car, and the testimony tended to show that he could have stopped it by applying the brakes after he saw the plaintiff approaching the crossing, in time to have avoided the collision. It was his duty to have looked before he came so near to it, to see if this crossing, so much used, was clear of teams and travelers. Situated where he was, on the top of the car, so high above the ground, he should have looked ahead continually, to see if the track was clear. His car had no bell or whistle or other means of signaling or warning, and his constant vigilance and applying the brakes were his only means of avoiding danger, and he failed to use either. He said he hailed or hallooed to the plaintiff, and the brakeman at the switch says that he did the same, but the plaintiff did not hear either of them. The human voice is weak and of little use when compared and in competition with the noise of cars and wagons, and a desperate “makeshift” in such a dangerous emergency. The plaintiff did not look in the direction of this car coming. He was watching and waiting for the train to pass. His attention was diverted from that direction, and as soon as the train was over and away from the crossing he drove on, not supposing or having any reason to expect or think that this detached car was following after the train. No ordinarily reasonable man would have so expected or thought, situated as the plaintiff was. 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. Here both of these conditions were absent. It is claimed by the learned counsel of the appellant that the plaintiff was intoxicated, notwithstanding the verdict of the jury otherwise. In view of the facts, this question does not seem to be material. It is only material as affecting the question of the plaintiff's contributory negligence. If not the least want of common care and prudence can be imputed to him, then it is immaterial whether he was drunk or sober at the time. Railway companies have no more right to run over a drunken man than a sober one. Drunkenness is not negligence per se, nor unless it contributes to the accident or injury. If it did not, then it is a matter of no concern to the defendant. What more could or would have been reasonably done by the plaintiff, or by any one so situated, if unquestionably sober, than he did to protect himself from injury? If nothing, then it was no matter whether he was drunk or not. If the plaintiff did not do anything he ought not to have done, or omit to do anything that he ought to have done, under the circumstances, then its immateriality is apparent. The jury found a special verdict that the defendant was negligent, in that its servant failed to stop the car, and that such negligence was the proximate cause of the injury; that the conductor in charge of the car did not use due diligence to warn the plaintiff of his danger, and could have stopped the car in time to have prevented the collision, by applying the brakes after he discovered the plaintiff approaching the track; that the plaintiff was not guilty of any want of ordinary care which contributed to the injury, and that he was not intoxicated immediately prior to the accident, or incapable of managing and conducting himself with ordinary care. The jury found the plaintiff's damages at $4,700, and the court rendered judgment accordingly. The errors assigned will be disposed of in their order.

1. The court ought to have granted a nonsuit, or directed a verdict for the defendant, or granted a new trial. On the merits of the case involved in these motions but little need be said. This is a very plain case. There is nothing in the conduct of the plaintiff that suggests even a suspicion of the want of ordinary care. The question of...