Bahlert v. Chicago, Milwaukee & St. Paul Railway Co., 175 Wis. 481

175 Wis. 481 | Wis. | 1921

Vinje, J.

The vital question raised by the appeal is ..whether, plaintiff was guilty of more than a slight want of ordinary care in driving his automobile so close to the track without looking for a train. The testimony is that he looked when from 600 to 700 feet from the track and that he drove at a rate of speed of about twelve miles per hour, and did not look again till within twelve or fifteen feet of the track, when it was too late to avoid the collision. The first observation was obviously too early to be relied upon alone, especially in view of his slow fate of speed. He was then not within or near the zone of danger and would not be for a considerable time. The duty to look and listen is when approaching the zone of danger and at the last practicable or reasonable opportunity. So his first observation cannot be relied upon to show compliance with his duty to look and listen. His second and last observation was too late. He was familiar with the Crossing; had normal hearing and sight, and within the last one hundred feet he had an unobstructed view of the track and train for a long distance. There was evidence that some trees obstructed his view, but the nearest tree to the track was twenty feet from the right of way and the road made an angle of 120 degrees with the track on the right-hand side — on which side plaintiff sat, his car having a right-hand drive, — so that in order to look for the train he could look almost straight ahead, and the tree mentioned did not' obstruct his view of the train at all after he came near the zone of danger when it became his duty to look.

There is also claim made that his view was obstructed and his attention diverted by a Ford car with top down that he passed about one hundred feet from the track. He estimated the distance at seventy-five feet, but said it was near the center of Van Cleve avenue. Measurements showed the distance to be 105 feet. He said the Ford car slowed up and stopped'at the place indicated by him. If so, and there is nothing to dispute it, he had nothing to interfere with his looking for a train after he passed the Ford car a distance of ■from ninety to one hundred feet. The car back of him could not divert his attention. Indeed, it would seem that its stopping near a railroad crossing would constitute a warning to him to stop also, at least to look for a train. And had he looked during the first sixty feet af,ter passing the car he could have seen the train in time to avoid it.

Plaintiff relies upon the case of Gordon v. Ill. Cent. R. Co. 168 Wis. 244, 169 N. W. 570. But in that case there were obstructions to the view of the train for a long distance back from the track, and it was only during the last thirty feet that the traveler had an unobstructed view of the train, and it was said that there could be no assumption that the deceased neither looked nor listened for the train. Here we have plaintiff’s own testimony that he neither looked nor listened except at two points, one too early and the other too late.

It is true that in cases, of this kind where a slight want of ordinary care on plaintiff’s part does not defeat recovery, the strict rule of ordinary care is correspondingly relaxed as stated in the Gordon Case, but that relaxation does not abrogate the duty to look and listen for a train at a railroad crossing. And when it appears, as here, that there is a failure to look and listen within the zone where the duty exists, such failure, unless a sufficient excuse therefor is shown, constitutes more than a slight want of ordinary care. White v. M., St. P. & S. S. M. R. Co. 147 Wis. 141, 133 N. W. 148; Puhr v. C. & N. W. R. Co. 171 Wis. 154, 176 N. W. 767.

We reach the conclusion that from the undisputed evidence plaintiff was .guilty of more than a slight want of ordinary care and hence cannot recover damages. In arriving at such conclusion we are not unmindful of the weight that should be given a verdict approved by the trial court. Were the evidence as to the main facts conflicting, the jury’s finding would ordinarily be conclusive. But here there is no conflict in the evidence. The only question is what conclusion should be drawn from it as to the degree of contributory negligence. To allow the verdict to stand would be to permit the most flimsy excusé for diversion of attention to abrogate the rule as to duty to look and listen. Such an excuse must be substantial. White v. M., St. P. & S. S. M. R. Co. 147 Wis. 141, 133 N. W. 148. As before suggested, the alleged excuse, namely, the stopping of the other car before it reached the railroad crossing, was more in the nature of a warning than an excuse.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the action upon the merits.