Schildt v. Johnson

159 N.W. 805, 164 Wis. 102, 1916 Wisc. LEXIS 46

• Court: Wisconsin Supreme Court
• Decided: October 24, 1916
• Status: Published

Opinions

ViNJE, J.

The trial court held that the relation of passenger and carrier had not arisen; that the defendant was not negligent; and that plaintiff was guilty of contributory negligence as a matter of law. We need not determine whether under the facts of the case the relation of passenger and carrier existed at the time of plaintiff’s injury, or wbetber defendant was negligent, because, conceding for the purposes of the case that plaintiff was a passenger, we still think he was guilty of contributory negligence in standing so close to the car when it passed as to be struck by it or to lose his footing by reason of the force or suction of the air current created by its passage. There is nothing hidden or deceptive in the swift motion of a car. A child of even quite tender years senses the danger of standing close to such a rapidly moving object. The car was an ordinary interurban one with the usual overhang. Its headlight enabled plaintiff to see it coming and there was no reason why he could not have stepped back far enough to be safe. His failure to do so when he stood and watched its approach must be held to be contributory negligence. Obviously cases cited to the effect that it is negligence to cross a railroad track without looking and listening have no application to this case, for plaintiff testifies he stood and watched the approach of the car for at least two blocks. He was an able-bodied man forty-five years of age, with good eyesight and in possession of all his faculties so far as it appears. Under such circumstances, knowing, as he says, that the car had an overhang of perhaps three feet, it was his duty to avoid the zone of danger.

It was not a case of the best means of escaping from a sudden perilous position, as plaintiff’s counsel argues. The position was voluntarily assumed; the impending danger observable, and the only means of escape was to step back out of danger. Plaintiff says the speed of the car was so great that it “drawed him in.” If so, he must have sensed the great rate of speed some appreciable time before the car reached him, because he stood all the time looking directly at it. Under such circumstances both his sense of sight and hearing would disclose the high rate of speed in time to enable him to step back to safety before the car reached him.

By the Court. — Judgment affirmed.