O'Toole v. Duluth, South Shore & Atlantic Railway Co.

140 N.W. 293, 153 Wis. 461, 1913 Wisc. LEXIS 195

• Court: Wisconsin Supreme Court
• Decided: May 14, 1913
• Status: Published

Opinions

The following opinion was filed March 11, 1913:

Siebecker, J.

The jury found that the defendant was guilty of negligence in failing to give warning of the approach of its engine to the grade crossing, over the highway-in question; that such negligence was the proximate cause of plaintiff’s injuries; and that plaintiff’s omission' to look and listen for an approaching locomotive, when he should have done so, was, under the circumstances and conditions, a want of ordinary care which proximately contributed to cause hina the injuries complained of, but that this culpability on his part was no more than a slight want of ordinary care. ’ The court held that the plaintiff was entitled to judgment on the verdict for the recovery of the damages found by the jury.

The appellant assails the- judgment on the ground, among others, that the evidence shows as matter of law that plaintiff*, in omitting to look and listen for trains and engines while driving toward and onto the crossing, when one of defendant’s engines, running light, was approaching it, was guilty of more than a slight want of'ordinary care. The facts showing tbe conditions surrounding this- crossing, plaintiff’s relation thereto, and his conduct in approaching and driving onto it, are practically undisputed. There is no room for controversy concerning plaintiff’s ability to see and hear the engine approaching the crossing while he was driving on the road, which is about fifteen feet from and parallel to the railroad track, for the distance of ninety feet before he turned to cross the track. Plaintiff testified that before starting his team he looked and listened for trains at the place he dumped his load, which was a point ninety feet from the crossing; that he did not hear or see a train within his field of observation, which extended about 500 feet along the railroad track in the direction from which the engine that struck him came; that from the time he started on his course of travel from this point he did not again look for an approaching train or locomotive; that he heard or saw none until he had turned in his course and his horses’ front feet were on the track, when he heard and observed this engine about 200 feet away; and that he then made his best efforts to cross and clear the track before the approaching engine should reach him. He admits that nothing at any time obstructed his view from seeing this engine at a point from' 500 to 600 feet distant, after he dumped his load, to the time he drove onto the track; and that he did not look or listen for an approaching train or engine. It also appears that the accident occurred on a cold winter morning; that plaintiff wore a cap, which, he states, covered his ears; and that another driver followed him with a team at some distance and observed the approaching engine and before the plaintiff drove onto the track tried to warn him of •its approach by “hollering” to him, but did not succeed.

Under the provisions of ch. 332, Laws of 1909, can it be said that such contributory negligence of the plaintiff, proximately causing his injuries, was a “slight want of ordinary care” ? It must be considered that the language employed in this act was used in its ordinary and usual legal sense, and that the words, a “slight want of ordinary care,” mean that degree of care to which the terms are applied in the laws and decisions of the courts of this state. Viewing the plaintiff’s conduct, in driving onto the railroad track as he did, in the light of the established adjudications on the subject, we are led to the conclusion that it shows, as matter of law, negligence of a higher degree than a “slight want of ordinary care.” In Schilling v. C., M. & St. P. R. Co. 71 Wis. 255, 37 N. W, 414, 40 N. W. 616, conduct of this nature was involved, and the court speaks of it as follows:

“Oan we say that an ordinarily prudent man, with the same knowledge of the time when the train was due, and having lived so near the railroad at that place so long a time, would not have looked or listened before crossing the track? He took no precaution, and used no means whatever, to avoid the danger. He used no care and exercised no prudence whatever. [Italics ours.] He might as well have been blind and deaf.”

Dohr v. Wis. Cent. R. Co. 144 Wis. 545, 129 N. W. 252.

In Brown v. C. & N. W. R. Co. 109 Wis. 384, 85 N. W. 271, where the plaintiff drove his horse and buggy into the danger of an approaching train, a similar case was presented to the court. The court said:

“The evidence is perfectly clear that the deceased had ample opportunity to discover the danger which resulted fatally to him, and that he drove his horse recklessly into it. He did not make any attempt to discover the coming train, though it must have been in sight when he was at least forty feet from the crossing. The evidence shows one of the most reckless attempts to cross a railway track, regardless of the danger which it in law and in fact suggests, that can be found in the books.”

In Koester v. C. & N. W. R. Co. 106 Wis. 460, 82 N. W. 295, the court adverts to the negligent character of the conduct of a person in failing to look and listen for trains before attempting to pass over grade crossings, and holds it to be inexcusable as matter of law. It is well established by the foregoing and many other adjudications on the subject, which need not be enumerated here, that the plaintiff’s culpability, under the undisputed facts, is so obvious that it must be ruled as a question of law that he was guilty of a want of ordinary care which exceeds in culpability a “slight want of ordinary care,” and in its magnitude and gravity, when viewed in the light of the impending perils of approaching trains and engines at such crossings, approaches the point of no care and of reckless conduct. It is suggested by respondent that the rights of the parties are controlled by sec. 1809, Stats. (1898), as amended by ch. 653, Laws of 1911. The accident happened on March 4, 1911. This statute went into effect the following July 13, 1911. The rights of the parties were fixed before the passage of this law, and hence are not affected by its provisions. See Clemons v. C., St. P., M. & O. R. Co. 137 Wis. 387, 119 N. W. 102. We are constrained to hold that the jury’s finding, that plaintiff was guilty of a “slight want of ordinary care,” is not in accord with the undisputed evidence; that the evidence, as matter of law, establishes a higher degree of culpability than a “slight want of ordinary care;” and that the court erred in awarding the plaintiff judgment in the case.

By the Court. — The judgment appealed from is reversed, ■and the cause remanded with directions to dismiss the complaint.