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

• Decision Date: 22 September 1885
• Court: Wisconsin Supreme Court
• Parties: WILLIAMS v. CHICAGO, M. & ST. P. RY. CO.

64 Wis. 1

24 N.W. 422

WILLIAMS

v.CHICAGO, M. & ST. P. RY. CO.¹

Supreme Court of Wisconsin.

Filed September 22, 1885.

Appeal from circuit court, Columbia county.

This is an action for damages sustained about noon of June 15, 1883, by reason of the plaintiff's horses, wagon, and harness, while crossing the defendant's railroad track at a point about a mile and a quarter west of Columbus, being struck by an engine, with a caboose attached, running thereon. On the trial, at the close of the plaintiff's testimony, the court granted a nonsuit, and from the judgment entered thereon the plaintiff brings this appeal.J. O. McKenney, J. J. Sutton, and J. W. Wagner, for appellant, John Willams.

John W. Cary, for respondent, Chicago, M. & St. P. Ry. Co.

CASSODAY, J.

The following facts are conclusively established by the evidence: At the place of the injury the railway ran east and west, and the public highway ran across it north and south. The plaintiff's team, driven by his hired man, approached the crossing from the north. The engine, with a caboose attached, approached the crossing from the west. Two men rode with the driver, sitting on dump-boards lying flat on the bolsters of the wagon, with their feet hanging down, and their faces towards the east and their backs towards the west. When they got opposite the house on the west side of the highway, at a point about 25 rods north of the crossing, one of the men got off, and after walking about five rods west towards the house saw the engine and caboose coming from the west, and about 45 rods distant from the crossing. Between the point where the man got off and a point about 18 rods north of the crossing there were a few trees on the west side of the highway; but from that point to the crossing, a distance of about 18 rods, there was no house nor tree, nor anything to obstruct the view, except the deep cut through which the track ran. This cut was about 10 feet deep in the deepest place, and from that point sloped each way, so that at a distance of about 60 feet each way therefrom it was only about six or seven feet deep. The cut wholly disappeared several rods west of the crossing, so that a person in the highway 100 feet north of the crossing could see the track for 100 feet west of the crossing, and could see a train or smoke-stack of a train several rods further west. After the man got off at the point 25 rods north of the crossing, the team, with the driver and the other man sitting on the dump-boards with their faces towards the east, talking, moved on south towards the crossing; and when they reached the last tree, about 18 rods north of the crossing, the driver looked over his right shoulder to the west, but saw no train. The horses walked from that point to the crossing, but neither the driver nor the man with him looked again to the westward until the engine was close on the cattle-guard and the horses nearly on the railroad track.

While passing over these 18 rods there was a considerable portion of the distance that a coming train from the west could have been seen, if within 30 rods of the crossing, and for the entire distance, except perhaps at the deepest point of the cut, the top of the smoke-stack could have been seen, if anywhere within 30 rods of the crossing. The horses were a quiet team, and would have stopped at any time before reaching the track had the driver said “whoa.” The engine was run unusually fast, without blowing the whistle, ringing the bell, or giving any other signal, until it reached the cattle-guards. The failure to blow the whistle and ring the bell before crossing the highway was such statutory negligence as would, in the absence of the contributory negligence on the part of the driver, make the defendant liable in this action. Section 1809, Rev. St.; Bower v. Chicago, M. & St. P. Ry. Co. 61 Wis. 457;S. C. 21 N. W. Rep. 536;Ransom v. Chicago, St. P., M. & O. Ry. Co. 62 Wis. 178;S. C. 22 N. W. Rep. 147;Hoye v. Chicago, etc., Ry. Co. 62 Wis. 668;S. C. 23 N. W. Rep. 14. In Bower v. Chicago, etc, R. Co., supra, it was, in effect, held that if the driver could have prevented the accident by using his eyes in looking, and his ears in hearing, then there could be no recovery. But the fact is conclusively established by the evidence that had the driver, while approaching the crossing, exercised ordinary vigilance in looking in the direction of the coming engine, he would have discovered it in time to have stopped the team before reaching the railroad track, and thus prevented the injury. Failing so to do, he was clearly guilty of contributory negligence, under all the authorities. In support of this, the respondent's counsel have cited so many cases that we do not feel called upon to cite any.

The judgment of the circuit court is affirmed.

NOTE.

When negligence of the party injured contributes to the accident, there can be no recovery, although the train was moving at an unusual and dangerous and unlawful rate of speed, and although no warning was given of its approach by ringing the bell or blowing the whistle, (Schofield v. Chicago, M. & St. P. Ry. Co. 8 Fed. Rep. 488;S. C. 5 Sup. Ct. Rep. 1125, and 2 McCrary, 268;Holland v. Chicago, M. & St. P. R. Co. 18 Fed. Rep. 243; ...