McKinney v. Chicago & Northwestern Railway Co.

58 N.W. 386, 87 Wis. 282, 1894 Wisc. LEXIS 171

• Court: Wisconsin Supreme Court
• Decided: March 16, 1894
• Status: Published

Opinion

NewMAN, J.

If the plaintiff had looked in the direction of the coming train he would have seen it coming and would have avoided injury. The rule of the law is well settled. It needs no citations. Onp who is about to cross a railroad track is bound to be alert with his senses. The track itself is a danger signal. He must both look and listen. If by looking he could see the approaching train in time to avoid a collision, he is without remedy if he permits it to strike him.

There is nothing in the circumstances of this case so peculiar as to make it an exception to the rule. The plaintiff was old and dull of hearing, it is true. He had but one eye. It does not appear but that one was a fairly good eye. He knew his own infirmities and limitations. These should have suggested to him a more vigilant exercise of such faculties as he did have, rather than a relaxation of vigilance. He knew also the situation and the dangers. He had seen the first train pass, followed closely by the second. Had be looked, he would have seen the third following closely after the second. To look behind, cumbered as he was in his carriage, would subject him to some trifling inconvenience. But that trifling inconvenience was the price of his safety. ■ To look was to be saved.

By the Court.— The judgment of the circuit court is affirmed.

WiNslow, J.

I think the question whether the plaintiff was guilty of negligence in not looking up the track for the third train after having watched and waited for the first two trains, should have been submitted to the jury. The evidence tended to show that the second and third trains were only about an ordinary train length apart and running at ordinary speed. This was a very unusual method of running trains, and in violation of a rule of the company which was offered in evidence. The case is not in legal effect different from the case of Wa/rd v. C., St. P., M. & O. P. Co. 85 Wis. 601. In that case a traveler watched and waited for a freight train to cross the highway, and then drove on the track without looking and was struck by a detached car which was following the freight train at a little distance. It was held that under the circumstances he was not bound to look in the direction of the detached car, because his attention was diverted by the first train. I can see no solid ground of distinction between the two cases.