Yellick v. Milwaukee Northern Railway Co.

170 N.W. 941, 168 Wis. 562, 1919 Wisc. LEXIS 91

• Court: Wisconsin Supreme Court
• Decided: March 4, 1919
• Status: Published

Opinions

Siebecker, J.

Plaintiff testified that he had worked at this job three days; that he knew the cars passed the place frequently while he was there. He stated that on the occasion in question he passed over the plank from the curb towards the mixer, pulling the wheelbarrow behind him by its two handles; that he looked to the north on Sixth street before he reached the mixer at a point about eight feet from the car tracks and saw no' car; that his view was unobstructed (a distance of about -340 feet) ; that he went down the plank and to a point near the track; that he dropped the barrow handles, turned around, stooped over to' grasp the barrow handles to push it forward, when he was hit by the street car and injured. He testifies that the mixer was about five feet eight inches in height at its highest point and that it did not prevent his seeing the approaching car from where he was working.. It is also undisputed that the barrow had to’ be moved about six feet from the car track from where he stood to place it under the spout of the mixer. He testifies that he did not look to observe an approaching car when he stepped into' the zone of danger nor when he stopped, turned around, and stooped to1 grasp' the barrow handles to push it forward under the mixer spout;

Plaintiff’s 'evidence shows that he could see the approaching car at all times on his trip from the curb to the place he stopped near the track to turn around. It is obvious that the car which hit him was near him and that he necessarily would have seen it had he looked before, he stepped into1 the zone of danger o'r after he had entered it. It is also undisputed that nothing occurred to divert-his attention or- to* prevent him from seeing the approaching- car had - he looked while he traveled the last eight feet of his trip, nor did his duties so engage him as to prevent him from looking for the cáf. The evidence permits of no inference other than that he must have seen the car approaching him if he kept a proper lookout as he proceeded from the curb to where he stopped or that he omitted to pay any attention to it. The failure to do either, under the facts and circumstances adduced by the evidence, is per se negligence on his part which manifestly contributed to produce the accident. Meissner v. Southern Wis. R. Co. 160 Wis. 507, 152 N. W. 291; Bubb v. Milwaukee E. R. & L. Co. 165 Wis. 338, 162 N. W. 180; Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W. 179.

The contention that the evidence here presents a case of the class typified by Turtenwald v. Wis. Lakes I. & C. Co. 121 Wis. 65, 98 N. W. 948, and Dinan v. Chicago & M. E. R. Co. 164 Wis. 295, 159 N. W. 944, is not sustained. In the Turtemvald and Dinan Cases the plaintiffs at the time of injury were engaged at their work, located in the place of danger, and their attention, when, directed to their tasks, necessarily prevented them from readily observing and seeing the impending danger and avoiding it. That is not the fact here; the plaintiff, as shown by the undisputed evidence, was not prevented from looking and seeing the approaching car, nor was his engagement such as to hinder him from using his senses to observe that he was in the zone of danger and in imminent peril of being hit by the car.

By the Court. — The judgment appealed from is affirmed.