White v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 24 October 1911
• Citation: 133 N.W. 148,147 Wis. 141
• Court: Wisconsin Supreme Court
• Parties: WHITE v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

147 Wis. 141

133 N.W. 148

WHITE

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of Wisconsin.

Oct. 24, 1911.

Syllabus by the Judge.

A right to be vindicated by an action in court is dependable on the law of the country where the cause of action is claimed to have arisen.

For establishment of a cause of action dependable upon the law of a foreign county such law should be pleaded and proved the same as any other essential fact.

Where a violated right involving a cause of action is dependable on the law of a foreign country, and that law is not brought to the attention of the court by pleadings and evidence, the same is conclusively presumed to be like the law of the forum.

Presence of a railroad track is such a significant warning of probable danger, that ordinary care requires a person before attempting to cross to first use his senses of sight and hearing, to the right and to the left, for discovery of any train which may be in dangerous proximity.

Failure to perform the duty to look and listen, in the circumstances stated in the foregoing, when there is opportunity therefor, is fatal want of ordinary care.

The duty to look and listen, in the circumstances indicated, includes duty to see or hear an approaching train, if one is in plain sight or hearing. Hence the declaration of a person as to his having performed such duty yet did not see or hear a train, though one was in plain sight or hearing from his position, does not present a jury question, and most emphatically so as to pedestrians.

The rule stated as to looking, listening, seeing and hearing, is one of law, not of mere evidence.

Failure to comply with the aforesaid rule is not excused by mere diversion of attention or absorption in thought, or anything short of practical incapacity to give attention by looking and listening by reason of some actual prevention--physical or its equivalent.

The rule stated is not open to exception to fit the varying notions of different persons as to when a train is in dangerous proximity to the crossing.

A companion rule to the foregoing is this: Where one was so circumstanced as regards crossing a railroad track that it was incumbent upon him to use his senses to discover whether there is an approaching train in dangerous proximity, he is conclusively presumed to have been able to see or hear one if others no more favorably situated therefor did so without difficulty.

In case of evidence being so conclusively one way as not to support a verdict the other, the cause should be taken from the jury on motion therefor.

A refusal to direct a verdict involves judicial determination that there is such conflicting evidence and reasonable inferences therefrom that a verdict either way would not be wholly without proof to sustain it.

In case of such a judicial determination as indicated in the last foregoing, or a like determination on motion after verdict, it should not be disturbed on appeal, unless, giving due weight to the superior advantage possessed by a trial judge to reach a just result, it yet appears by the record to be clearly wrong.

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

Siebecker and Kerwin, JJ., dissenting.

Action by Richard J. White, as administrator of the estate of William G. Barnstable, deceased, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to render judgment for defendant.

Action for damages claimed to have been caused to the wife of plaintiff's intestate by the alleged negligent killing of her husband while crossing defendant's track.

April 22, 1909, the deceased, William G. Barnstable, a married man 50 years of age, at Lake Villa, state of Illinois, in company with his wife, about 7:30 p. m. started to cross defendant's railway track at the intersection with a village street known as Cedar avenue. They had come from home, some little distance northeast of the crossing, and were on their way to the post office, traveling southwesterly on the sidewalk which was on the southeasterly side of the street. In their course there were three railway tracks. The first, a passing track, was about 85 feet at right angles southwesterly from the northeasterly boundary line of the right of way. At such line, in the center of the street, and about 116 feet on a line to the point where the sidewalk on which Barnstable and his wife were walking reached the passing track, there was suspended about 15 feet above the surface of the street, a gasoline arc light of a rated 1,000 candle power. There were no obstructions interfering with the illumination from this light reaching the passing track at such crossing, a considerable distance up and down and across the track, and across the second or main track, located about 14 feet further southwesterly. Along the southwesterly side of the latter and southeasterly of the southerly sidewalk was a station platform and depot. The platform reached to within about 15 feet of the sidewalk and the depot to within about 135 feet. The third track was some 50 feet southwesterly of the main track and within 10 feet of the southwesterly side of the depot. On the north end of the station platform, within 8 or 10 feet of the sidewalk and some 50 feet from the point where the sidewalk intersected the passing track there was a lamp similar to the one before mentioned. Both lamps were in service at the time of the accident. There was a freight train on the main track going south, which intercepted, to some extent, light from the lamp on the depot platform reaching the sidewalk crossing of the passing track. Aside from such interference there was nothing to prevent the two lights from illuminating such crossing and the surrounding territory, reaching out from it in all directions for a considerable distance.

As Mr. Barnstable and his wife reached the right of way, a Mr. Rogers was in the act of lighting the lamp located there. The two conversed for a moment while Mrs. Barnstable walked on. It was cloudy and pretty dark, but the lights rendered all objects on the northerly side of the main track for a considerable distance up and down the same discernible. Mr. Barnstable was perfectly familiar with the operation of trains on the track and all the surroundings. He was delayed at crossing by the freight train. During the delay, after talking as stated with Mr. Rogers, he walked to and fro on the sidewalk northeasterly of the passing track while his wife was seated on a cedar post near the walk, a short distance from such track. At this time Mr. Rogers was seated in his conveyance near by, waiting for the train to pass. It was about 20 minutes to 8 p. m. A Mr. Wunder during this waiting period drove up with a bus and stopped with the others for the freight train to clear the crossing. Both Wunder and Rogers were a little further from the crossing of the sidewalk over the passing track than Barnstable and his wife. While all were as indicated, Mr. Barnstable moved southwesterly till he entered or nearly entered upon the passing track and then stopped again, waiting for the freight train to clear. He stood looking at it with his line of sight to the right and his back rather towards the left-hand side of the walk. The moving train was making so much noise as to drown that of cars moving from the left on the passing track toward where Mr. Barnstable was standing. A train from the right came in just ahead of the one which was obstructing the crossing of the main track. Part of the former had been left on the passing track to the right while the engine, four box cars and two gondola cars, loaded with sand passed by the station to the left. One of the gondola cars was set out and the engine and other cars were then backed toward the crossing at a speed of about five miles per hour. The gondola car was farthest from the engine and the first to reach the crossing. There was no light on it or any trainman thereon nor any signalling. Just before the gondola reached the sidewalk Mr. Barnstable started to make the crossing of the passing track, as he observed the freight train was about to clear it. At that instant he was 20 to 25 feet nearer the gondola car than Mr. Rogers or Mr. Wunder. They both saw the car in ample time for Barnstable to have avoided it had he also seen it and made an effort to do so. Rogers saw the car when it was about 12 feet from the crossing. Mr. Barnstable was then in motion. Rogers, seeing his danger, called to him. He turned his head to the left and in an instant, as he was about over or on the southerly side of the westerly rail, was struck and killed. Rogers testified that Barnstable looked both ways before he started to cross; that when he was on the passing track he could have seen the car at the time he--Rogers--did had he looked. Wunder saw the car coming when it was some 50 feet from the crossing. From his viewpoint Barnstable stood looking rather to the right at the train passing on the main track, than in the direction of the approaching car. Parties waiting to make the crossing expected the train on the passing track would have to be made up and moved out.

The testimony on the part of defendant indicated that any one, circumstanced as Barnstable was, could have seen the cars backing up toward the crossing while they were some considerable distance away by looking in that direction for the purpose of observing whether such danger existed; that there were no obstructions interfering with the light from the lamp north on the easterly side of the right of way rendering cars on the track left of the sidewalk visible for a hundred or more feet away.

The issue made by the pleadings as to whether plaintiff's intestate was negligently run down by defendant's train and killed without contributory negligence on his part, and all other issues essential to a cause of action under the laws of the state of Illinois, were...