It is contended by the defendant: first, that the plaintiff was guilty of contributory negligence as a matter of law; second, that the trial court committed an error of law in setting aside the verdict, and that the defendant was entitled to judgment upon the verdict. The plaintiff was a woman forty-four years of age, and on the afternoon of September 21, 1921, Mrs. Hoberg called at the home of
In view of the finding of the jury it must be held that the defendant’s contentions that the cars were in view from a point more than 100 feet east of the crossing, that Mrs. Hoberg and the plaintiff did not look or stop, and that the automobile was in fact four feet past the look-out sign-post when they first observed the freight car, are sustained. In this connection it is to be noted that Mrs. Hoberg, the driver of the car, sat on the left-hand side of the seat, away from the approaching box cars, and that the plaintiff sat on the right-hand side of the front seat, on the side nearest to the approaching box cars. As to the duty of the plaintiff, who was an invited guest, the court instructed the jury as follows:
“The degree of care which a party is obliged to exercise in order to constitute ordinary care varies with the degree of the danger. Our courts have recognized the duties of travelers approaching and crossing railway tracks at street crossings and have established a rule of diligence as to what*378 shall constitute ordinary care on the part of one so approaching and crossing a railroad track. It is undisputed in this case that. Mrs. Hoberg, the driver of the automobile, and also Mrs. Belongy, the plaintiff, was familiar with’ this crossing just north of the Webster avenue bridge, as both had crossed it many times. They therefore knew of the présence of the railroad track at the place of the accident. It is a'rule of law in this state that'the presence of a railroad track is a warning of probable danger. It is a standing proclamation to persons approaching it that a train is liable at any time to run thereon, and the traveler approaching it must assume at all times that a train may be approaching. When Mrs. Hoberg and Mrs. Belongy knew that they were approaching this track, they, and each of them, had a duty to perform — the duty to look and listen for an approaching train, cars, or. locomotive, before attempting to cross the track. Failure so to do when there is an opportunity therefor and to keep out of the way of an approaching train, cars, or locomotive, which could be seen or heard by them by a vigilant performance of this duty to look and listen, would be want, of ordinary care on the part of either Mrs. Flobérg or Mrs. Belongy, if either failed to perform it. . . .”
“The duties of travelers approaching a railway crossing that I have enumerated in the foregoing instructions, to look and listen, apply to all travelers on the highway. So far as the performance of these duties is concerned, the law makes no difference between the driver of an automobile and a guest sitting in the front seat with her. If Mrs. Hoberg failed to perform these duties she was guilty of a want of ordinary care. Likewise, if Mrs. Belongy failed to perform these duties, she was guilty of a want of ordinary care. If you find that. Mrs. Belongy did perform these duties, 'then you will consider, whether or not her conduct thereafter was the conduct of a reasonably prudent- person under the same or similar circumstances. A guest or a passenger in an automobile operated by another is bound to exercise ordinary care for. her own safety. Mrs. Belongy could not neglect her duty to use reasonable diligence in caring for herself. If Mrs. Hoberg was carelessly going into danger, Mrs. Belongy, who was sitting in the front*379 séat'with'her and was familiar with the track and the trees which obstructed the view, should have been aware of it, and it was incumbent upon her to take proper steps for her own safety; such steps as the reasonably prudent person would take under the same or similar circumstances. Ordinary care might require her to act or not to act, to speak or not to speak, considering all the circumstances. The court cannot lay down a mathematical precept as a rule of law enjoining in detail what should be said or done or omitted in every juncture of danger. Under some circumstances, a clamor of direction by a guest might tend to confuse the driver and increase the danger. Under other circumstances, the duty to utter warning might be imperative. In some instances it might be rank folly to wrest the wheel from the driver, and in others it might be highly necessary to do that very thing. It is plain that an invited guest sitting in the front seat of an open car is not to be supine and inert as mere freight.
“Accepting the hospitality of a friend does not excuse her from the duty of acting for her own safety as a reasonably prudent person would under like circumstances. However, she may not sit silently by and permit the driver to encounter or enter into open danger without protest or remonstrance and take the chances of obvious danger. She cannot remain dumb and inert, taking no heed of known danger and permit her host to drive into it. Ordinary care on her part, or lack of it, may be inferred from action or omission to act, speaking or omitting to speak, respecting the duty, under all the circumstances, to act for her own safety as a reasonably prudent person would under like circumstances.”
In setting aside the verdict the court said:
“The requested instruction complained of and as given by the court relating to the eighth and tenth questions of the special verdict is elaborate as to details and is argumentative, which undoubtedly conveyed to the jury what' they, the jury, thought was the court’s opinion or personal view of the evidence in the case. I am satisfied these instructions as given were more than favorable to the defendant and prejudicial to the plaintiffs, and the court invaded the functions of the jury in portions of this charge.”
In Howe v. Corey, 172 Wis. 537, 179 N. W. 791, it was held, under the facts and circumstances of that case, that the guest was guilty of contributory negligence as a matter of law, and it was said:
“It is the general rule that a passenger in an automobile is required to use the same care for his safety that a reasonably careful person exercises under ,the same or similar circumstances. The fact that he has not charge of the automobile as driver does not absolve him from exercising care for his safety, though he is not required to exercise the same care that is required of the driver.”
See, also, Igle v. Peoples R. Co. 5 Boyce (Del.) 376, 93 Atl. 666; Brommer v. Pennsylvania R. Co. 179 Fed. 577; Hall v. W. J. & S. R. Co. 244 Fed. 104; Colorado & S. R. Co. v. Thomas, 33 Colo. 517, 81 Pac. 801; Ohio E. Co. v. Evans (Ind.) 134 N. E. 519; Brown v. McAdoo, 195 Iowa, 286, 188 N. W. 7; McAdoo v. State, 136 Md. 452, 111 Atl. 476; Dummer v. Milwaukee E. R. & L. Co. 108 Wis. 589, 84 N. W. 853.
That the instruction given stated the law in greater detail than was necessary must be conceded. The trial court was also of the opinion that the instruction imposed upon the plaintiff a higher degree of care and diligence than was warranted by the law. Taken as a whole, the instruction clearly indicates that the plaintiff was a guest; that while it was her duty as it was the duty of the driver to exercise ordinary care under all of the circumstances, yet it was plainly pointed out that the ordinary care she was to exercise was the ordinary care to be exercised by persons similarly situated. Mrs. Belongy testified that she did make
While the instructions are prolix and there is much repetition, nevertheless they correctly state the law, as will be shown by an examination of the authorities referred to. The instructions were given in response to requests of counsel. A huge mass of material apparently embodying instructions upon all phases of the case were handed to the court, which no doubt accounts for the prolixity and repetitions contained in the instructions as given. This practice has been properly criticised in Jones v. Monson, 137 Wis. 478 (119 N. W. 179), at p. 488. However, mere prolixity and repetition does not constitute reversible error. 14 Ruling Case Law, p. 778, § 46, and cases cited.
While the trial court was correct in assuming that instructions should not be argumentative, we think the instruction given is free from that fault. To argue a proposition is to contend for it. A careful reading and rereading of the instruction discloses no bias of mind on the part of the court. The jury could not from the instruction infer that the verdict should, in the opinion of the court, be either for or against the plaintiff. Nor are we able to draw an inference of that character. It should be borne in mind that this instruction was given in a case where both the driver and the guest were entirely familiar with the situation. They both were aware that they were approaching a railway crossing. They both knew that the crossing might be in use at any time. In addition to that, the required lawful warning signs were in plain sight, and, if the verdict of the jury is to be
We find it unnecessary to determine whether the plaintiff was guilty of contributory negligence as a matter of law.
By the Court. — The order of the municipal court is reversed, with directions to enter judgment for the defendant upon the verdict, dismissing the complaint.