61 Wis. 457 | Wis. | 1884
A servant was driving the team of the plaintiff hitched'to a wagon for the carriage of pop, soda-water, etc., of peculiar construction and of considerable value, on the street or highway leading into and through the village of Lyons, and towards a crossing of the railroad,'and when one quarter of a mile from the crossing he looked at his watch and found that it was a few minutes past 4 o’clock P. M., and looked westward on the track of the railroad and could not see any train approaching, and especially the passenger train which was due before that time. He then drove on at a walk towards the crossing, and when about fifteen rods therefrom he looked again and neither saw nor heard anything of the train or a locomotive west of the crossing, and when within ten or twelve feet from it he first saw and heard a disconnected locomotive approaching the crossing at great speed, and he attempted to urge on his team as fast as possible to cross the track before it, and the rear end of the wagon was struck by it with great force, and the team,
On this statement of the facts, which, though brief, is believed to be fair, we do not think the circuit court would have been justified in granting a nonsuit, or in ordering a verdict for the defendant, as requested by its learned counsel. The driver may have well supposed that the passenger train had alreadjr passed the crossing when he looked at his watch and found by it that it was after 4 o’clock, and after its usual time of passing; but he looked up the track to the west at least twice before he came very near the crossing, and saw and heard nothing of the train or locomotive. lie had no reason to suppose that there was a locomotive five minutes ahead flagging the train. If it had been the train it would have made considerable noise, and he might have heard it if he did not see it; but a detached locomotive, which makes but little noise, he might not have heard, if the bell was not rung or the whistle blown, as the jury might have found from the evidence. At the great speed at which the locomotive was running it took it but a few seconds to pass through the deep cut, and it certainly cannot be said that it was negligence in law that the driver did not see it, or might have seen it had he looked just at the time it was in the cut. It would not be a want of ordinary care if he did not look in the direction' of this unexpected locomotive all the time while he was approaching the crossing, for his team required some of his attention. The large and stationary umbrella over his head does not seem to have obstructed his view in the least.
The plaintiff’s servant does not appear to have been guilty of any want of ordinary care. As to the defendant com
The charge of the court Avas unusually clear, correct, and full on all questions of law affecting the case. The jury Avere told that it Avas the duty of the servant to have lqoked up the track when he approached the crossing, and “ if, by using his eyes in looking and his ears in hearing, he could have ascertained the approach of the train at a sufficient distance to avoid the same, and thus prevented the accident in question, then it Avas his duty so to make use of his eyes and ears; and plaintiff cannot recover if his servant failed to do so and the accident Avas caused or directly contributed to by such failure.” This instruction was excepted to because the court did not tell the jury what Avas such sufficient distance. That was clearly a question of fact for the jury, and not of law for the court.
All of the seventeen instructions asked by the learned counsel of the defendant, except four, related to the use of the eyes and ears of the driver’, and his duty to look and see and listen and hear the approaching locomotive before he came to the crossing, and they are all objectionable as making it the duty of the driver to have looked all the time and con
A witness was asked on behalf of the plaintiff whether the bell of this locomotive was rung or its whistle blown when it was approaching at this time a crossing three miles west of Lyons, in the village of Springfield. This question was objected to by the counsel of the defendant, and the objection was overruled, and the witness answered the question in the negative. As to whether the bell was rung or the whistle blown at the Lyons crossing the evidence was conflicting. This evidence had a direct bearing upon that question, and had some weight, and might properly have had, against the testimony of the defendant’s witnesses that the bell was rung and whistle blown at the crossing in question, and supporting the testimony of the plaintiff’s witnesses that they were no,t. It related to the manner in which this locomotive was managed and run on this very trip, and near the place of the accident, in using such signals at street or road crossings, and would establish more than a possibility, from which & probability could be inferred, that no such signals were used at the Lyons crossing, and would create a
These are all the questions raised on this appeal. The case ivas tried at the circuit and argued in this court by able counsel, and nothing was omitted on either side which could have any possible bearing upon the result. On the whole record we have been unable to find any error.
By the Court.— The judgment of the circuit court is affirmed.