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

• Decision Date: 14 March 1899
• Citation: 102 Wis. 489,78 N.W. 585
• Court: Wisconsin Supreme Court
• Parties: WHITE v. CHICAGO & N. W. RY. CO.

102 Wis. 489

78 N.W. 585

WHITE

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

Supreme Court of Wisconsin.

March 14, 1899.

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

Action by Charles White against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Action for personal injury. Defendant operates its railway through the city of Neenah, and across Commercial street. The railroad tracks run north and south, and Commercial street in a northeasterly and southwesterly direction, and at the point of intersection the northeast angle is 43° 50'. The street is crossed by four tracks, the main track being to the west. Next easterly is the passing track, the distance from center to center, perpendicularly, being about 13 feet, from rail to rail about 8 feet, and along the sidewalk about 12 feet. Still further east, in succession, are what are known as the storage and warehouse tracks. From the center of the main track to the center of the storage track, along Commercial street, the distance is a little more than 21 1/2 feet, and to the center of the warehouse track 99 feet. Defendant's depot is immediately north of Commercial street, and west of the main track, and consists of a baggage room, depot, and express room, under one roof. The distance from the north side of the north sidewalk at the main track up the track to a point opposite the southeast corner of the baggage room is 132 feet 6 inches, and opposite the same corner of the depot, 192 feet 6 inches. Gates were maintained by the defendant at this crossing, and were operated from 7 o'clock in the forenoon until the passing of the trains which met there and were due at 7:37 in the evening. Plaintiff was injured about 8:30 in the evening of February 9, 1897. He lived in Neenah. He spent the early part of the evening in Menasha, and was returning home, walking on the north sidewalk of Commercial street towards the west. While passing over the main track, he was run into by one of defendant's freight trains, and severely injured. The negligence of defendant concerning which proof was offered consisted in failure to operate the gates, blocking of the sidewalk by cars left on the tracks east of the main track, and running its train at a dangerous rate of speed, over the crossing, without signal or warning. Defendant admitted that the gates were not operated, but denied the other allegations of negligence. The jury found by a special verdict that the defendant was guilty of negligence which was the proximate cause of plaintiff's injury; that the plaintiff was without fault; that the bell of the locomotive was ringing continuously as the train approached and passed over the crossing; that the speed of the train was 18 miles per hour,--and assessed the plaintiff's damages at $5,500. The court refused to direct a verdict for defendant, and refused to set aside the verdict rendered, but ordered judgment for the plaintiff. From the judgment so entered, this appeal is taken.Fish, Cary, Upham & Black, for appellant.

Eaton & Weed and Henry Fitzgibbon, for respondent.

BARDEEN, J. (after stating the facts).

We are urged to reverse this judgment on the ground that the plaintiff's evidence, with the finding of the jury, shows that he was guilty of negligence that will preclude a recovery. The same contention was addressed to the trial judge, and denied, on grounds hereinafter referred to. It is admitted that proper gates were maintained at the crossing where plaintiff was injured, and that they were not operated at the time of the injury. It must also be assumed that the several tracks referred to in the statement of facts were incumbered with cars, the car on the passing track being close to or partly over the sidewalk on the north side of Commercial street, and that, as the jury has found, defendant's train approached the crossing at the rate of 18 miles per hour. It must also be assumed that the headlight in defendant's locomotive was lighted; that the bell was rung continuously as the train approached the crossing; and that the measurements as stated are substantially correct. The plaintiff was a man about 55 years of age, possessed of all his faculties. He had lived within a few hundred feet of this crossing for a year and a half, and was somewhat familiar with the surroundings and conditions. He approached the crossing on foot from the east. We will give the circumstances of the accident in his own language. “When I approached the tracks, I see the gates were up, and cars standing on the side track, warehouse track, and I walked on, looking both ways. I supposed everything was clear, and I walked on and looked both ways, and I see nothing and heard nothing, and, when I got to the main track, I stopped and looked around the corner north towards the depot. I looked north around the edge of the car. I didn't walk around the car. I stood and looked north, and could see down as far as the depot, one corner of it, and moved up and looked south; and I took three or four steps, and my foot slipped, and I was struck. When I stopped at the corner of the car, I looked for approaching trains, but didn't see a train coming, nor hear the bell of an engine rung.” This was about half past 8 in the evening of February 9th. The headlight of the locomotive was burning, and the jury found that the bell was ringing. The moment he pasesd the car on the passing track, if there was a car at that point, the view north for 1,600 feet was clear and unobstructed. If the train was near enough to strike him, as he said it did, it must have been in plain sight. There can be no gainsaying this fact. It is fixed by the uncontroverted testimony. The wind was blowing southeast, and would naturally carry the noise of the approaching train and the sound of the ringing bell somewhat in his direction. There was nothing to distract his attention or prevent him using his senses. He says he looked, but saw no train and heard no bell. One of two conclusions is certain,--either that he did not look and listen, or if he did look and listen, he did not heed what he saw and heard. The law presumes that he saw what he could have seen if he had looked, and heard what he could have heard if he had listened. Cawley v. Railway Co. (Wis.) 77 N. W. 179. The presumption being that he saw and heard the approaching train while standing at a place where he was in perfect safety, the fact that he got on the track, and was injured, leads to the conclusion that he was heedless and careless. The duty to look and listen is absolute, and nonobservance of that duty is negligence per se. This is the rule of all of the authorities, many of which are cited in the...