Dodge, J.
1. TRe most strenuous contention on appellant’s part is that contributory negligence appears as matter [38]*38of law. Such contention has been the subject of consideration in a multitude of crossing cases in this court, and while recognizing that due care or negligence must he measured by the surrounding circumstances and is ordinarily to be deduced as a fact therefrom, many decisions have declared that, for the courts of this state, certain conduct is so clearly variant from due care that the law declares it negligence, and courts should so hold without submitting the question to uncertain arbitrament by the jury. It has been decided that in approaching a railway crossing one must use his senses of sight and hearing to ascertain whether there is any approaching train, of which peril the mere existence of the track is a continual warning; that the duty to look and listen exists at every opportunity to render it effective, but especially at the last opportunity before entering upon the peril; also that courts will not deem credible the testimony of a plaintiff that he did look and listen, but did not see or hear that'which the physical facts and circumstances demonstrate must have been apparent. A few of the decided cases are Nolan v. M., L. S. & W. R. Co. 91 Wis. 16, 25, 64 N. W. 319; White v. C. & N. W. R. Co. 102 Wis. 489, 493, 78 N. W. 585; Koester v. C. & N. W. R. Co. 106 Wis. 460, 464, 82 N. W. 295; Tesch v. M. E. R. & L. Co. 108 Wis. 593, 84 N. W. 823; Guhl v. Whitcomb, 109 Wis. 69, 85 N. W. 142; Steber v. C. & N. W. R. Co. 115 Wis. 200, 91 N. W. 654.
Applying such rules, is the plaintiff, beyond controversy, brought within their condemnation? It appears that he looked when 150 feet away, and again when eight feet, from the track. It does not appear very conclusively, either by testimony or verdict, that he did not continue some measure of observation between those points; but concede, arguendo, that he did not, such observation in this ease could not have disclosed to him any danger, nor helped to save him from the accident. . It would, at most, have confirmed, what he already knew — that an engine was in motion upon the south [39]*39main track. It would not have disclosed anything in the movements of that engine to indicate probability of its being transposed onto the north track, even if he had known of the existence of the cross-over switch, which by no means conclusively appears. During all this time of approach, plaintiff could see, and, indeed, had previous knowledge, that when he got close to the crossing he would have the best and most extended view of the track on which these cars stood, both to east and west, and could then most effectively take those precautions, which ordinary care demanded, to ascertain whether engine or train was approaching. Certainly we cannot discover conduct, in the course of his approach toward the track, which is inconsistent with ordinary care. There is testimony that when he got close to the track (i. e., within seven or eight feet) he stopped and performed his duty to look and listen for the peril of which that track was a warning, namely, an engine moving thereon. Having a view of several hundred feet, and having assured himself of the absence of any such peril, he proceeded to cross. Where in all this is there lapse in any of the respects declared essentiál to ordinary care in any of the foregoing cases ? Had he relied on his observation while passing along the sidewall!;, and omitted to renew it when close to the track, he would have fallen within the criticism of Nolan v. M., L. S. & W. R. Co., supra, where one, after looking and seeing an engine was stationary, indulged in some conversation, and then stepped on the track without giving a final look, which would have disclosed the approach of the engine. Had there been anything to suggest to him the existence of the cross-over switch, and that the engine which he saw to be on the south track was likely to turn thereon and come to collision with the standing cars, it might have been his duty to stop far enough back to have an unobscured view of that curve, and to assure himself that the engine was so far away as to exclude all possible peril, but no such suggestion existed. It does not appear that he knew of the switch, [40]*40nor that, when he passed the point where the standing cars intercepted, his view, the engine on the sonth track had commenced to swerve' northward. Had the engine been moved at only six miles an honr, it seems more than probable that such swerving would have been apparent long enough before the collision to have been seen by plaintiff before his line of vision was obscured by the standing cars. But in fact at no time when the engine was so on the switch was he in a position so that the most vigilant exercise of sight or hearing could discover it.
We have not dwelt on the presence and conduct of the flagman. The extent to which absence of customary signals of danger may justify any relaxation of vigilance which would be expected if no such warning were customary has received antithetic discussion in Rohde v. C. & N. W. R. Co. 86 Wis. 309, 56 N. W. 872, and White v. C. & N. W. R. Co. 102 Wis. 494, 78 N. W. 587. We need not enlarge upon that subject, as, independently of the flagman’s tacit invitation to cross, we are unable to say that plaintiff is conclusively shown to have omitted any of the possible efforts to have informed himself of the presence of the danger from which he suffered. The situation seems to fall within the principle of such cases as Langhoff v. M. & P. du C. R. Co. 19 Wis. 489, and Tesch v. M. E. R. & L. Co. 108 Wis. 593, 84 N. W. 823, to the effect that one who diligently uses all his senses, and assures himself of the absence of any peril discoverable thereby, is not necessarily negligent in crossing a railway track, although there may exist a hidden danger of which he has no knowledge and cannot by observation inform himself.
2. Error is assigned upon refusal of the court to submit, at request of the defendant, the question whether plaintiff was guilty of a “slight want of ordinary care, which contributed,” etc. The question submitted was whether he was guilty of any want of ordinary care, etc. The form adopted [41]*41by the court was correct. It covered the whole field. If guilty of either a slight want of ordinary care, or more than a slight want, the question must be answered in the affirmative, while appellant’s question might, by a technical juryman, be answered negatively if he believed the omission more than slight. This subject has been fully ruled against appellant. Mauch v. Hartford, 112 Wis. 40, 57, 87 N. W. 816. In this connection it is also urged, however, that it was error not to explain to the jury that a slight want of ordinary care would warrant and require an affirmative answer to the‘question in fact submitted. What the court did was to instruct* with some emphasis, that any want would constitute negligence and require affirmation. It is undoubtedly established by numerous decisions of this court that, when properly requested, the attention of the jury should be challenged by direct use of the word “slight” in this connection, and we need neither repeat nor question the reasons which have induced the adoption of such rule. Otis v. Janesville, 47 Wis. 422, 2 N. W. 783; Hart v. Red Cedar, 63 Wis. 634, 642, 24 N. W. 410; Jung v. Stevens Point, 74 Wis. 547, 43 N. W. 513; Shaw v. Gilbert, 111 Wis. 165, 188, 86 N. W. 188.
Free access — add to your briefcase to read the full text and ask questions with AI
Dodge, J.
1. TRe most strenuous contention on appellant’s part is that contributory negligence appears as matter [38]*38of law. Such contention has been the subject of consideration in a multitude of crossing cases in this court, and while recognizing that due care or negligence must he measured by the surrounding circumstances and is ordinarily to be deduced as a fact therefrom, many decisions have declared that, for the courts of this state, certain conduct is so clearly variant from due care that the law declares it negligence, and courts should so hold without submitting the question to uncertain arbitrament by the jury. It has been decided that in approaching a railway crossing one must use his senses of sight and hearing to ascertain whether there is any approaching train, of which peril the mere existence of the track is a continual warning; that the duty to look and listen exists at every opportunity to render it effective, but especially at the last opportunity before entering upon the peril; also that courts will not deem credible the testimony of a plaintiff that he did look and listen, but did not see or hear that'which the physical facts and circumstances demonstrate must have been apparent. A few of the decided cases are Nolan v. M., L. S. & W. R. Co. 91 Wis. 16, 25, 64 N. W. 319; White v. C. & N. W. R. Co. 102 Wis. 489, 493, 78 N. W. 585; Koester v. C. & N. W. R. Co. 106 Wis. 460, 464, 82 N. W. 295; Tesch v. M. E. R. & L. Co. 108 Wis. 593, 84 N. W. 823; Guhl v. Whitcomb, 109 Wis. 69, 85 N. W. 142; Steber v. C. & N. W. R. Co. 115 Wis. 200, 91 N. W. 654.
Applying such rules, is the plaintiff, beyond controversy, brought within their condemnation? It appears that he looked when 150 feet away, and again when eight feet, from the track. It does not appear very conclusively, either by testimony or verdict, that he did not continue some measure of observation between those points; but concede, arguendo, that he did not, such observation in this ease could not have disclosed to him any danger, nor helped to save him from the accident. . It would, at most, have confirmed, what he already knew — that an engine was in motion upon the south [39]*39main track. It would not have disclosed anything in the movements of that engine to indicate probability of its being transposed onto the north track, even if he had known of the existence of the cross-over switch, which by no means conclusively appears. During all this time of approach, plaintiff could see, and, indeed, had previous knowledge, that when he got close to the crossing he would have the best and most extended view of the track on which these cars stood, both to east and west, and could then most effectively take those precautions, which ordinary care demanded, to ascertain whether engine or train was approaching. Certainly we cannot discover conduct, in the course of his approach toward the track, which is inconsistent with ordinary care. There is testimony that when he got close to the track (i. e., within seven or eight feet) he stopped and performed his duty to look and listen for the peril of which that track was a warning, namely, an engine moving thereon. Having a view of several hundred feet, and having assured himself of the absence of any such peril, he proceeded to cross. Where in all this is there lapse in any of the respects declared essentiál to ordinary care in any of the foregoing cases ? Had he relied on his observation while passing along the sidewall!;, and omitted to renew it when close to the track, he would have fallen within the criticism of Nolan v. M., L. S. & W. R. Co., supra, where one, after looking and seeing an engine was stationary, indulged in some conversation, and then stepped on the track without giving a final look, which would have disclosed the approach of the engine. Had there been anything to suggest to him the existence of the cross-over switch, and that the engine which he saw to be on the south track was likely to turn thereon and come to collision with the standing cars, it might have been his duty to stop far enough back to have an unobscured view of that curve, and to assure himself that the engine was so far away as to exclude all possible peril, but no such suggestion existed. It does not appear that he knew of the switch, [40]*40nor that, when he passed the point where the standing cars intercepted, his view, the engine on the sonth track had commenced to swerve' northward. Had the engine been moved at only six miles an honr, it seems more than probable that such swerving would have been apparent long enough before the collision to have been seen by plaintiff before his line of vision was obscured by the standing cars. But in fact at no time when the engine was so on the switch was he in a position so that the most vigilant exercise of sight or hearing could discover it.
We have not dwelt on the presence and conduct of the flagman. The extent to which absence of customary signals of danger may justify any relaxation of vigilance which would be expected if no such warning were customary has received antithetic discussion in Rohde v. C. & N. W. R. Co. 86 Wis. 309, 56 N. W. 872, and White v. C. & N. W. R. Co. 102 Wis. 494, 78 N. W. 587. We need not enlarge upon that subject, as, independently of the flagman’s tacit invitation to cross, we are unable to say that plaintiff is conclusively shown to have omitted any of the possible efforts to have informed himself of the presence of the danger from which he suffered. The situation seems to fall within the principle of such cases as Langhoff v. M. & P. du C. R. Co. 19 Wis. 489, and Tesch v. M. E. R. & L. Co. 108 Wis. 593, 84 N. W. 823, to the effect that one who diligently uses all his senses, and assures himself of the absence of any peril discoverable thereby, is not necessarily negligent in crossing a railway track, although there may exist a hidden danger of which he has no knowledge and cannot by observation inform himself.
2. Error is assigned upon refusal of the court to submit, at request of the defendant, the question whether plaintiff was guilty of a “slight want of ordinary care, which contributed,” etc. The question submitted was whether he was guilty of any want of ordinary care, etc. The form adopted [41]*41by the court was correct. It covered the whole field. If guilty of either a slight want of ordinary care, or more than a slight want, the question must be answered in the affirmative, while appellant’s question might, by a technical juryman, be answered negatively if he believed the omission more than slight. This subject has been fully ruled against appellant. Mauch v. Hartford, 112 Wis. 40, 57, 87 N. W. 816. In this connection it is also urged, however, that it was error not to explain to the jury that a slight want of ordinary care would warrant and require an affirmative answer to the‘question in fact submitted. What the court did was to instruct* with some emphasis, that any want would constitute negligence and require affirmation. It is undoubtedly established by numerous decisions of this court that, when properly requested, the attention of the jury should be challenged by direct use of the word “slight” in this connection, and we need neither repeat nor question the reasons which have induced the adoption of such rule. Otis v. Janesville, 47 Wis. 422, 2 N. W. 783; Hart v. Red Cedar, 63 Wis. 634, 642, 24 N. W. 410; Jung v. Stevens Point, 74 Wis. 547, 43 N. W. 513; Shaw v. Gilbert, 111 Wis. 165, 188, 86 N. W. 188. It is disappointing that such reiteration of a rule fails to secure response to it from the trial court, whose duty it is to correctly guide the jury by full instructions, whether expressly requested or not, without regard to whether reversal is to be apprehended in absence of such request. Appellant made no request for any instruction on the point, but now urges that the request for submission of a question embodying the word “slight” is tantamount to a request for an instruction making use of it, on authority of Jung v. Stevens Point, supra. That case does not go quite to the extent claimed. It decides that the word “negligence,” used in the special verdict in that case, is so ambiguous, — signifying, as it may, slight, ordinary, or gross negligence — that the court ought, of its own [42]*42motion, to limit and define it, and that such duty was so imperative that a mere suggestion from counsel was enough to make its omission reversible error, even in absence of a formally requested instruction. In the present case there was no such complete omission of duty — merely a failure to inform the jury that the word “any” was used in sufficiently comprehensive sense to include “slight” want of ordinary care, which must be obvious to any one carefully observant of the language. No rule is better or longer established in courts of error than that, generally, mere omissions to give certain instructions to juries will not constitute ground for reversal unless definite request therefor is made. Lachner v. Salomon, 9 Wis. 129, 134; Karber v. Nellis, 22 Wis. 215, 219; Weisenberg v. Appleton, 26 Wis. 56, 60; Austin v. Moe, 68 Wis. 458, 32 N. W. 760; National Bank v. Illinois & W. L. Co. 101 Wis. 247, 258, 77 N. W. 185; Hacker v. Heiney, 111 Wis. 313, 316, 87 N. W. 249 ; New Home S. M. Co. v. Simon, 113 Wis. 267, 271, 89 N. W. 144. That rule is recognized, and the method of making the request defined, by statute in Wisconsin (sec. 2853, Stats. 1898), which, as construed, requires counsel to formulate in writing the exact words of the instruction he desires given. Lyle v. McCormick H. M. Co. 108 Wis. 82, 91, 84 N. W. 18, 51 L. R. A. 906; Hacker v. Heiney, 111 Wis. 313, 316, 87 N. W. 249. To that rule, except as stated in Jung v. Stevens Point, supra, hardly any exception has been made, save where it is deemed that an element essential to the cause of action is left undisposed of by a special verdict because no direct question upon it is submitted, and because the jury are not so instructed that they must have disposed of it in answering some ambiguous or uncertain question in the verdict, so framed that the issue might or might not be included therein. In such case it has been held sufficient for counsel to request that the issue be submitted, and error has been held well assigned, not because [43]*43the court failed to instruct, but because it failed to submit tbe issue, either by a direct question or by explicitly defining tbe ambiguous ones so as to include it. Hennesey v. C. & N. W. R. Co. 99 Wis. 109, 74 N. W. 554; Dugal v. Chippewa Falls, 101 Wis. 533, 77 N. W. 878; Crouse v. C. & N. W. R. Co. 104 Wis. 473, 480, 80 N. W. 752. Tbe case of Jung v. Stevens Point, 74 Wis. 547, 43 E. W. 513, goes somewhat beyond this principle, and further than any other in this court toward relaxation of the very ancient and salutary general rule above stated. In that respect it is an extreme case, and we are not willing to extend its authority beyond the situation there presented. We are not willing to hold it error that the court omitted to instruct the jury that “any want of ordinary care” includes a slight want thereof, in the absence of a specific request.
3. Appellant presents as error the fact that the court submitted to the jury, both by question and instruction, to find whether defendant ran its engine at “an unreasonable and dangerous speed,” while the complaint only alleged negligence in running “at a high and unlawful rate, to exceed six miles an hour.” He contends that this did not charge a speed negligent in itself, but merely one negligent because forbidden by statute, and so not negligence, within the case made by the pleadings. This construction of the complaint is very technical and narrow. We should hesitate to hold that it does not fairly notify defendant of the claim that the speed was negligently high, giving the pleading the liberal construction commanded by statute. It has been said that a negligent speed is unlawful speed, independently of statutory prohibition. Wickham v. C. & N. W. R. Co. 95 Wis. 23, 26, 69 N. W. 982. Waiving such considerations, however, of course the error is immaterial if twelve miles per hour is expressly prohibited, for the jury have found upon abundant, if not un-controverted, evidence that such was the speed. The statutes [44]*44on the subject are as follows: Sec. 1809, Stats. 1898, provides :
“In all cities and villages ... no train or locomotive shall go faster, until after having passed all the traveled streets thereof, than at the rate of six miles per hour.”
Stevens Point was a city. Center avenue was a traveled street thereof, and had not been passed, by the engine. The' apparently inevitable conclusion is, however, sought to be avoided by reference to sec. 1809a, Stats. 1898, which provides :
“Any railroad corporation operating a railroad in this state and whose line of road extends through cities and villages shall not run its trains or locomotives faster than fifteen miles an hour until after having passed all the traveled streets thereof, and shall cause the engine bell to be rung before and while crossing any such streets: provided however, that gates shall first be placed and maintained upon such street crossings within cities and incorporated villages over which trains shall pass as the public authorities of any such city or village may direct.”
These two sections are found together in the Revision of 1898, and it must be presumed that the legislature intended that both should have some effect. It could hardly be thought that the prohibition in sec. 1809 against exceeding six miles was intended to be wholly wiped out of existence by a mere prohibition against exceeding fifteen miles, contained in sec. 1809a. Nor can we consider any such absurd construction as possibly the mere words of the latter section suggest — as that the limitation of speed is to apply only where gates are put in, while it may be unlimited in absence of gates. Quite clearly, the two sections were intended to be read together; the latter qualifying the former. So considered, they are intelligible and reasonable. The first prescribes a general limitation of speed in cities and villages to six miles per hour. The latter makes exception where the railroad has put in gates in compliance with directions from the city, in which case fif[45]*45teen miles per bonr shall be the limit. Such being the force of the statute, the situation in which the higher speed may be maintained is an exception to the general rule, and the burden rests on him who claims the exception to prove the facts warranting it. The record is barren of any evidence tending to show that the defendant has placed any gates at street crossings in Stevens Point. TJntil that fact is shown, it must be presumed to be governed by the six-mile limitation prescribed by sec. 1809. Hence, upon the record before us, the fact of statutory negligence is fully established, and the further finding that the speed was unreasonable and dangerous is, at worst, mere surplusage and not prejudicial error.
The court refused to submit, at defendant’s request, the question whether plaintiff could have heard the engine coming east from the switch, had he stopped and listened before reaching the track. This question, like some similar ones in fact submitted, presented no issue — merely an evidentiary and inconclusive fact, hardly disputed, fully included in the inquiry whether he was guilty of contributory negligence, and which the court might, without error, refuse, in the exercise of its discretion over the form of the verdict. Another sufficient reason for its refusal is that the fact, if found, would be inconclusive, if not immaterial. That he could hear an engine which he had seen and knew to be on the south track would hardly deter the ordinarily careful man from crossing the north track, when he could and did see that was clear for 400 feet or more. It would, at most, suggest the precaution of further observation after he had passed the standing cars, and before attempting to cross the south track.
Error is assigned on allowing a witness testifying to his observation of the vicinity about an hour before the accident to testify that the fireman was running the switch engine without the engineer. It is obvious from the instructions and the special verdict that this fact had no effect upon any of the issues finally submitted to the jury, and could not have [46]*46been prejudicial, whether admissible or not, when offered in evidence.
The foregoing discussion sufficiently covers all the assignments of error on which appellant seems to rely. We find nothing which can warrant us in reversing the judgment.
By the Oourt. — Judgment affirmed.