The following opinion was filed November 15, 1921:
Jones, J.
In view of the testimony it is clear that the trial court would not have been justified in taking from the jury the question of the rate of speed of the train nor in changing their answer that the train was moving in excess of twelve miles an hour as it approached and was within twenty rods of the crossing.
Appellant’s counsel rely on Riger v. C. & N. W. R. Co. 156 Wis. 86, 144 N. W. 204, where in the opinion of one witness, formed from imperfect observation, the rate of speed was estimated at about sixteen or seventeen miles per hour, and where five witnesses testified that the rate was from four to seven miles an hour, and where the train was stopped within thirty feet after the signal. We do not consider the two cases at all analogous. See Swalm v. N. P. R. Co. 143 Wis. 442, 128 N. W. 62.
A much more serious objection raised by appellant is that the testimony showed the contributory negligence of plaintiff. The substance of his testimony was that he did not look nor listen and paid no attention to the approaching train. Without any explanation his frank admission of these facts would be proof of the baldest negligence, and according to a long line of decisions of this court would defeat his action.
[597]*597There are numerous circumstances relied on as an explanation, and the question is whether they sufficed to present a question for the jury. Plaintiff’s evidence is undisputed that he had never crossed this spur track, which was about 1,200 feet from the western limits of the city, until the day of the accident. He had passed over the main line on Military street at a point 1,780 feet farther south at 'least four times on other occasions, but the track in question left the main • track about thirty-seven feet north of Military street.
He knew of the three lines of railway running north through Fond du Lac and had passed over them on the forenoon of the day of the accident on his trip to the gravel pit. On this spur tracl<j with which he said he was not familiar, there were no telegraph poles and no cattle-guards or fences.
There had been a snowfall during the preceding night of three inches or more, and with a northwest wind the snow was blowing and drifting.- There was the testimony of several witnesses besides the plaintiff that at the time of the accident the track was all covered with snow and that in places off the track there were drifts three or four feet deep.
The plaintiff testified that he had much trouble managing the truck on account of the snow; that he had to raise the wind-shield three or four inches in order to see to drive; that chains were on all four of the wheels; and that in order to reach á lever and shift gears in managing the machine he had to bend over.
The train was running down grade at a speed which the jury found beyond the legal rate, with the steam shut off— hence with less than the usual noise, — and the wind was blowing from a direction opposite to that1 of the train.
Both parties introduced photographs in evidence and both parties rely on them. Small ones were taken by defendant’s agents on the afternoon of the accident, some of which showed that the rails were plainly, and others dimly, visible. Large photographs taken two days after the accident showed very clearly that the view was unobstructed as claimed and [598]*598that at that time the rails at ihe crossing could be plainly-seen. Plaintiff’s photographs, all taken in the afternoon of the day of the injury, show the rails as scarcely visible, and the dismantled truck imbedded in deep snow-drifts. Except in one of the defendant’s exhibits the drifts are not shown. It does not appear in the evidence how many trains had passed before the photographs were taken.
It is the popular impression that photographs cannot lie, but those who have had long experience in the trial of lawsuits know very well that although honestly taken and sworn to they may and often do convey very false impressions. It was the duty of the jury, in connection with all the other evidence, to consider the photographs, but they are not controlling upon us.
It has been argued with ability and earnestness by appellant’s counsel that there was no credible evidence to warrant the finding of the jury which absolved-plaintiff from contributory negligence, and that it is incredible that he did not know or ought not to have known that he was approaching the track of defendant. In considering whether we should set aside the order refusing a new trial there are certain rules of law which are binding upon us. It is settled by a long line of cases in this court, which it is unnecessary to cite, that the burden of proof of contributory negligence is ordinarily on the defendant. It is true that if the jury arrive at a conclusion wholly unwarranted by the evidence or which is very clearly the result of passion or prejudice, so that the court can see that justice has not been done, a new trial may be granted in the discretion of the court.
On the other hand, if the verdict arrived at is one that reasonable men might find, it is not the duty of the court to disturb the decision of fact which the law has confided to juries, not to judges. This court has repeatedly held that if there is any credible evidence to support the verdict it cannot be disturbed, and that the judgment of the trial court [599]*599sustaining the verdict should not be set aside unless clearly wrong. Ellis v. C. & N. W. R. Co. 167 Wis. 392, 167 N. W. 1048; Brunner v. M., St. P. & S. S. M. R. Co. 155 Wis. 253, 266, 143 N. W. 305, 144 N. W. 986; Slam v. Lake Superior T. & T. R. Co. 152 Wis. 426, 432, 140 N. W. 30; Kroger v. Cumberland F. P. Co. 145 Wis. 433, 443, 130 N. W. 513; Lam Yee v. State, 132 Wis. 527, 112 N. W. 425.
In the United States supreme court the rule has been thus stated:
“It is well settled that where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony or because, the facts being undisputed, fairminded men will honestly di'aw different conclusions from them.” Richmond & D. R. Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748; Klotz v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770; Harsen v. N. P. R. Co. 139 Wis. 186, 120 N. W. 826; Jurkovic v. C., M. & St. P. R. Co. 166 Wis. 266, 164 N. W. 993; Valin v. M. & N. R. Co. 82 Wis. 1, 5, 51 N. W. 1084.
It would probably seldom happen that a traveler would be excused for not knowing of his approach to a railroad track in broad daylight, and such ignorance would generally defeat a recovery. But the look-and-listen rule is not an unbending rule, but one to be considered in connection with all the facts. There may be ignorance of the fact that there is a railroad track at the place in question; the view may be partially obscured by trees or other objects, or entirely covered by fresh snow as indicated by testimony in this case. It cannot be said as a matter of law that any of these circumstances or all of them would excuse the person injured.
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The following opinion was filed November 15, 1921:
Jones, J.
In view of the testimony it is clear that the trial court would not have been justified in taking from the jury the question of the rate of speed of the train nor in changing their answer that the train was moving in excess of twelve miles an hour as it approached and was within twenty rods of the crossing.
Appellant’s counsel rely on Riger v. C. & N. W. R. Co. 156 Wis. 86, 144 N. W. 204, where in the opinion of one witness, formed from imperfect observation, the rate of speed was estimated at about sixteen or seventeen miles per hour, and where five witnesses testified that the rate was from four to seven miles an hour, and where the train was stopped within thirty feet after the signal. We do not consider the two cases at all analogous. See Swalm v. N. P. R. Co. 143 Wis. 442, 128 N. W. 62.
A much more serious objection raised by appellant is that the testimony showed the contributory negligence of plaintiff. The substance of his testimony was that he did not look nor listen and paid no attention to the approaching train. Without any explanation his frank admission of these facts would be proof of the baldest negligence, and according to a long line of decisions of this court would defeat his action.
[597]*597There are numerous circumstances relied on as an explanation, and the question is whether they sufficed to present a question for the jury. Plaintiff’s evidence is undisputed that he had never crossed this spur track, which was about 1,200 feet from the western limits of the city, until the day of the accident. He had passed over the main line on Military street at a point 1,780 feet farther south at 'least four times on other occasions, but the track in question left the main • track about thirty-seven feet north of Military street.
He knew of the three lines of railway running north through Fond du Lac and had passed over them on the forenoon of the day of the accident on his trip to the gravel pit. On this spur tracl<j with which he said he was not familiar, there were no telegraph poles and no cattle-guards or fences.
There had been a snowfall during the preceding night of three inches or more, and with a northwest wind the snow was blowing and drifting.- There was the testimony of several witnesses besides the plaintiff that at the time of the accident the track was all covered with snow and that in places off the track there were drifts three or four feet deep.
The plaintiff testified that he had much trouble managing the truck on account of the snow; that he had to raise the wind-shield three or four inches in order to see to drive; that chains were on all four of the wheels; and that in order to reach á lever and shift gears in managing the machine he had to bend over.
The train was running down grade at a speed which the jury found beyond the legal rate, with the steam shut off— hence with less than the usual noise, — and the wind was blowing from a direction opposite to that1 of the train.
Both parties introduced photographs in evidence and both parties rely on them. Small ones were taken by defendant’s agents on the afternoon of the accident, some of which showed that the rails were plainly, and others dimly, visible. Large photographs taken two days after the accident showed very clearly that the view was unobstructed as claimed and [598]*598that at that time the rails at ihe crossing could be plainly-seen. Plaintiff’s photographs, all taken in the afternoon of the day of the injury, show the rails as scarcely visible, and the dismantled truck imbedded in deep snow-drifts. Except in one of the defendant’s exhibits the drifts are not shown. It does not appear in the evidence how many trains had passed before the photographs were taken.
It is the popular impression that photographs cannot lie, but those who have had long experience in the trial of lawsuits know very well that although honestly taken and sworn to they may and often do convey very false impressions. It was the duty of the jury, in connection with all the other evidence, to consider the photographs, but they are not controlling upon us.
It has been argued with ability and earnestness by appellant’s counsel that there was no credible evidence to warrant the finding of the jury which absolved-plaintiff from contributory negligence, and that it is incredible that he did not know or ought not to have known that he was approaching the track of defendant. In considering whether we should set aside the order refusing a new trial there are certain rules of law which are binding upon us. It is settled by a long line of cases in this court, which it is unnecessary to cite, that the burden of proof of contributory negligence is ordinarily on the defendant. It is true that if the jury arrive at a conclusion wholly unwarranted by the evidence or which is very clearly the result of passion or prejudice, so that the court can see that justice has not been done, a new trial may be granted in the discretion of the court.
On the other hand, if the verdict arrived at is one that reasonable men might find, it is not the duty of the court to disturb the decision of fact which the law has confided to juries, not to judges. This court has repeatedly held that if there is any credible evidence to support the verdict it cannot be disturbed, and that the judgment of the trial court [599]*599sustaining the verdict should not be set aside unless clearly wrong. Ellis v. C. & N. W. R. Co. 167 Wis. 392, 167 N. W. 1048; Brunner v. M., St. P. & S. S. M. R. Co. 155 Wis. 253, 266, 143 N. W. 305, 144 N. W. 986; Slam v. Lake Superior T. & T. R. Co. 152 Wis. 426, 432, 140 N. W. 30; Kroger v. Cumberland F. P. Co. 145 Wis. 433, 443, 130 N. W. 513; Lam Yee v. State, 132 Wis. 527, 112 N. W. 425.
In the United States supreme court the rule has been thus stated:
“It is well settled that where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony or because, the facts being undisputed, fairminded men will honestly di'aw different conclusions from them.” Richmond & D. R. Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748; Klotz v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770; Harsen v. N. P. R. Co. 139 Wis. 186, 120 N. W. 826; Jurkovic v. C., M. & St. P. R. Co. 166 Wis. 266, 164 N. W. 993; Valin v. M. & N. R. Co. 82 Wis. 1, 5, 51 N. W. 1084.
It would probably seldom happen that a traveler would be excused for not knowing of his approach to a railroad track in broad daylight, and such ignorance would generally defeat a recovery. But the look-and-listen rule is not an unbending rule, but one to be considered in connection with all the facts. There may be ignorance of the fact that there is a railroad track at the place in question; the view may be partially obscured by trees or other objects, or entirely covered by fresh snow as indicated by testimony in this case. It cannot be said as a matter of law that any of these circumstances or all of them would excuse the person injured. Nor are we prepared to say as a matter of law that these and other similar facts are not proper subjects for the consideration of a jury. In the present case the facts that the track wa's spur in the' outskirts of the city, without fences or [600]*600cattle-guards; the testimony that the wind was blowing and the snow drifting; that plaintiff was busily occupied in handling a heavy truck with difficulty, were all facts fairly submitted to the jury, and they found that there was no contributory negligence, and their finding was sustained by the trial court.
In view of the decisions of this court as to the -province of the jury and the effect of their decisions on questions of fact, we do not feel justified in reversing the order denying a new trial. We cite a few of the many cases which illustrate that the look-and-listen rule is not an ironclad rule subject to no exceptions or qualifications: Valin v. M. & N. R. Co. 82 Wis. 1, 51 N. W. 1084; Sarles v. C., M. & St. P. R. Co. 138 Wis. 498, 120 N. W. 232; Kujawa v. C., M. & St. P. R. Co. 135 Wis. 562, 116 N. W. 249; Gordon v. Ill. Cent. R. Co. 168 Wis. 244, 169 N. W. 570; Winchell v. Abbot, 77 Wis. 371, 46 N. W. 665; Phillips v. M. & N. R. Co. 77 Wis. 349, 46 N. W. 543; Swalm v. N. P. R. Co. 143 Wis. 442, 128 N. W. 62; Wade v. C. & N. W. R. Co. 146 Wis. 99, 130 N. W. 890.
In this connection we may refer to the statute (sub. 6, sec. 1809) which provides that a recovery for personal injury or death caused by the negligent omission of a railway company to comply with the requirements of that section shall not be barred by a slight want of ordinary care contributing to the injury or death. In considering this statute, in the opinion of Mr. Justice Esci-iweiler, it was said:
“With the legislative change as to the amount of care, lack of which will defeat an action for injury to the traveler on the highway at a railroad crossing, there must be a corresponding relaxation of the former rather rigid look-and-listen rule.” Gordon v. Ill. Cent. R. Co. 168 Wis. 244, 169 N. W. 570.
Appellant’s counsel argue that the speed of the train was not the proximate cause of the injury. In some of the cases cited by them the question of proximate cause was not properly submitted to the jury. ' In others it is held that the neg[601]*601ligence of the plaintiff proximately caused the injury, and in others that in order for the plaintiff to recover he should show that the injury was the natural consequence of the act or omission of the defendant and that a person of ordinary care ought reasonably to have apprehended that personal injury to another might probably result from such negligence.
Appellant’s counsel argue that if the engine had been running ten miles per hour under the circumstances in this case the accident was as likely to occur as if the train was running twenty-five miles an hour, and that it could not have been anticipated that the accident would happen. In an opinion of the court by Mr. Justice Vinje it was said:
“It is not necessary that an ordinarily prudent man ought reasonably to have anticipated the particular iniury to the plaintiff or to any particular person. It is sufficient that such a man ought reasonably to have anticipated that his conduct might probably cause some injury to another.” Coel v. Green Bay T. Co. 147 Wis. 229, 238, 133 N. W. 23; Sparks v. Wis. Cent. R. Co. 139 Wis. 108, 120 N. W. 858; Morey v. Lake Superior T. & T. Co. 125 Wis. 148, 103 N. W. 271; Kujawa v. C., M. & St. P. R. Co. 135 Wis. 562, 116 N. W. 249.
The jury may have believed that there was a causal relation between the speed of the train and the extent of the injury. It is quite probable that if the train had been running more slowly the injury would have been less serious. Coel v. Green Bay T. Co., supra.
. .Although the engineer might not have anticipated the specific injury to the plaintiff, it is reasonable that he should have anticipated that travelers might undertake to cross the track even though a train might be in sight; and that accidents were more likely to happen if the train was running at an illegal than at a legal rate of speed. Under the testimony the jury may have believed that if the train had been going twelve miles an hour or less, the accident would not have happened at all. Ellis v. C. & N. W. R. Co. 167 Wis. 392. 402. 167 N. W. 1048.
[602]*602We are satisfied that the finding of the jury that the want of ordinary care on the part of the defendant was the proximate cause of the injury was correct.
By the Court. — Judgment affirmed.
Rosenberry, J., dissents.
A motion for a rehearing was denied, with $25 costs, on January 10, 1922.