Wilber v. Wisconsin Central Co.

57 N.W. 356, 86 Wis. 535, 1893 Wisc. LEXIS 214

Opinion

Winslow, J.

There is practically no dispute as to the facts in this case. The plaintiff was an employee of the defendant, fully acquainted with the switching yard through which he was walking, and knew that switching was actively in progress on the tracks behind him at the very time he was walking on the main track. His hearing was either wholly or partially cut off by the fact of his cap being pulled down over his ears. There were spaces between the tracks where he could have walked with safety; but, knowing all these facts, he chose to walk on, or immediately at the side of, the main track, where a passing car would strike him, for a distance of at least 178£ feet, without looking around. If this was not careless — even reckless— conduct, we should not know where to find it. "Within the rules laid down in the cases of Delaney v. M. & St. P. R. Co. 33 Wis. 67, and Schilling v. C., M. & St. P. R. Co. 71 Wis. 255, we must hold, under this testimony, that the plaintiff was, as matter of law, guilty of contributory negligence.

By the Court.— Judgment reversed, and action remanded for a new trial.