211 Wis. 294 | Wis. | 1933
Many grounds for reversal are assigned by the appealing parties, but in the view we take of the case we need only consider the claim of the defendants Weber that the plaintiff was guilty of contributory negligence as a matter of law. The collision occurred before enactment by the legislature of the comparative negligence statute so that contributory negligence is an absolute defense to the action.
The undisputed evidence bearing upon the question of contributory negligence is as follows: Raymond stopped for the plaintiff at the latter’s home, about a half block from the crossing where the collision occurred, and on the plaintiff’s entering the car drove on toward the crossing. A wigwag signal was working as the car approached the crossing and both boys saw it in operation. The train was approaching from the right on the main railway track, which was the middle of three parallel tracks five feet apart. A switch track which the automobile crossed was located 145 feet from the main track. When crossing this switch track the plaintiff looked to his right but could see nothing because buildings shut off his view. These buildings extended to within 38 feet from the main railway track. At a point in the center of the street 75 feet from the center of the main track the view to the right on the main tracks extends 70 feet; at 50 feet, 152 feet; at 35 feet, 829 feet; at 25 feet, from one-half to three-quarters of a mile. The automobile was traveling midway between the center of the street and the curb, and a person in the automobile could not see quite so .far down the tracks to the right as a person in the center of the street, as the street crossed the tracks at an angle at the right of about 140 degrees. After crossing the switch track the plaintiff did not look to the right again until he was thirty feet from the railway tracks when he saw the train forty feet away, “probably more” as he testified. The automobile was going twelve miles an hour, by the speedometer, according
We so hold with due regard to the rule laid down in Tomberlin v. Chicago, St. P., M. & O. R. Co. 208 Wis. 30, 238 N. W. 287, 242 N. W. 677, 243 N. W. 208, and reaffirmed in Paine v. Chicago, M. & St. P. R. Co. 208 Wis.
“It is the duty of one who is riding in an automobile as a passenger, when about to cross a railroad track, to look and listen for approaching trains, and to warn the chauffeur of the near approach of a train, and prevent him from attempting to cross the tracks close in- front of the train, and a failure to perform this duty amounts to negligence.”
By the Court. — The judgment of the circuit court is reversed, with directions to dismiss the complaint.