193 Wis. 346 | Wis. | 1927
The appellants contend that it was error to submit to the jury the issue whether the failure to maintain the flagmati, constituted a lack of ordinary care; that the issue that should have been submitted to the jury was the question whether the railroad failed to exercise ordinary care in the movement of its trains in view of all the surrounding facts and circumstances, including the absence of the flagman.
Appellants’ position is based on the decisions of this court holding that a jury is not competent to determine whether a flagman ought to be maintained at a crossing. Winchell v. Abbot, 77 Wis. 371, 375, 46 N. W. 665; Heddles v. C. & N. W. R. Co. 74 Wis. 239, 256, 257, 42 N. W. 237. See, also, Abbot v. Dwinnell, 74 Wis. 514, 518, 519, 43 N. W. 496; Hoye v. C. & N. W. R. Co. 67 Wis. 1, 14, 15, 29 N. W. 646. But see Winstanley v. C., M. & St. P. R. Co. 72 Wis. 375, 381, 39 N. W. 856.
In each of the cases cited above no flagman had ever been placed at the crossing there in question. In the case at bar, however, the railroad itself had determined that it was necessary to station a flagman at the crossing. The fact that the question of the necessity of placing a flagman at this crossing was no longer an open one takes this case out of the rule of the decisions cited above upon which the appellants rely.
Where a flagman has usually been maintained at a crossing, his withdrawal without notice to the public, which has a right to rely upon his presence, may in and of itself constitute a want of ordinary care because “the traveler might in this way be lured into danger, when, if no flagman had ever been kept there, he would not have looked for such a signal, but would have looked and listened for other signs of an approaching train. We cannot but approve of the author
The absence of a signal from a flagman at a crossing where a flagman is regularly maintained is, like an open gate at the railway crossing, an assurance to the public that there is no danger and an invitation to cross in safety upon which the public has a right to rely. If the railroad fails to give protection to the public under such circumstances by lowering the gate or by signal from its flagman it is guilty of actionable negligence. Rohde v. C. & N. W. R. Co. 86 Wis. 309, 312, 56 N. W. 872. The court submitted the proper issue to the jury.
(2) The question whether the plaintiff was guilty of contributory negligence was also for the jury. The trial court concisely summarized the facts and correctly stated the law that is controlling when it said:
“Plaintiff testified that he knew that a crossing flagman was maintained on this crossing, that he had been at times stopped by the flagman; that he thought there was a crossing flagman there all the time, including Sundays,, and that as he approached the track he looked for the flagman and saw no one there and supposed the coast was clear, and that he then started across. It thus appears that he was in the exercise of some degree of care. He looked both ways and looked for the flagman. He says also that he listened, but it is clear that being within a closed car, which was making a good deal of noise, he had no reasonable opportunity of hearing. However, he looked both for the train and for the flagman: Unless it can be said that it was his absolute duty to approach the crossing at so slow a rate of speed and with his car in such control that he could stop it within the space in which he could have seen the train, notwithstanding the fact that he was deceived by the absence of the flagman into believing the crossing clear, it cannot be said as a matter of law that the plaintiff was guilty of contributory negligence.”
*350 “While the plaintiff in this case might not rely upon the fact . . . that the flagman was not present as an absolute assurance of safety and proceed without regard to his own safety, such circumstances are nevertheless factors to be considered in determining whether or not the plaintiff was at the time in the exercise of ordinary care. . . . It is a matter of common knowledge and experience that travelers approaching a railway crossing at a time when gates or flagmen are ordinarily or usually maintained, take into consideration that fact in determining their course of conduct, and it is for the jury to determine whether or not, in a particular case, a traveler has given that circumstance such weight and consideration as the great mass of mankind ordinarily do under such circumstances.” Gundlach v. C. & N. W. R. Co. 172 Wis. 438, 443, 444, 179 N. W. 577, 985. See, also, Derr v. C., M. & St. P. R. Co. 163 Wis. 234, 237, 157 N. W. 753.
By the Court. — Judgment affirmed.