Dax v. Chicago, Milwaukee & St. Paul Railway Co.

201 N.W. 736, 185 Wis. 432, 1925 Wisc. LEXIS 103

• Court: Wisconsin Supreme Court
• Decided: January 13, 1925
• Status: Published

Opinions

Vinje, C. J.

The evidence is undisputed that before the deceased reached the passing track she had an unobstructed view to the west along the track for several miles and such view she had continually from the passing track a distance of fifteen feet till she reached the main track. There is no evidence that her attention was by any cause diverted. The jury having found her negligent, such negligence must have consisted in a failure to look or listen, or .both. Does such failure under such circumstances amount to more than a slight want.of ordinary care? This court has answered the question so many times in the affirmative and given its reasons therefor that no more is now needed than to state that such answer is adhered to, and to refe*r to a few of the late cases so holding. O’Toole v. D., S. S. & A. R. Co. 153 Wis. 461, 140 N. W. 293; Todoroff v. C. & N. W. R. Co. 169 Wis. 554, 173 N. W. 214; Puhr v. C. & N. W. R. Co. 171 Wis. 154, 176 N. W. 767; Bahlert v. C., M. & St. P. R. Co. 175 Wis. 481, 185 N. W. 515; Twist v. M., St. P. & S. S. M. R. Co. 178 Wis. 513, 190 N. W. 449; Plautz v. C., M. & St. P. R. Co. 180 Wis. 126, 192 N. W. 381; Sweeo v. C. & N. W. R. Co. 183 Wis. 234, 197 N. W. 805.

The case of Gordon v. Ill. Cent. R. Co. 168 Wis. 244, 169 N. W. 570, is relied upon by plaintiff. That case has been distinguished so many times that it is needless to do so in this case further than to call attention to' the fact that plaintiff in the Gordon Case drove an automobile, while here the deceased walked. As stated in White v. M., St. P. & S. S. M. R. Co. 147 Wis. 141, 133 N. W. 148, in the case of a foot traveler the zone of danger is so narrow and it is so easy for the traveler to reach a place of safety or to remain there that no close comparison can be made between one traveling on foot and one driving a team or an automobile. In the latter cases the team or automobile may be moving as fast as the train and many things may affect the power to stop or speed up, not to speak of the attention that must be-given the team or automobile. The foot passenger has perfect and instinctive control of himself and can almost instantly step outside the zone of danger.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint upon the merits.