100 Wis. 405 | Wis. | 1898
Where there is a reasonable dispute as to the evidentiary facts tending to establish negligence, or to the reasonable inferences which a jury may rightfully draw therefrom, the ultimate fact as to whether the party charged with negligence is guilty is for the jury; but where the facts are undisputed and the inferences therefrom all one way, the controversy turns on a question of law and must be decided by the court. Testing this case by that familiar rule, the trial court nonsuited the plaintiff. Whether contributory negligence on the part of the plaintiff was conclusively established so as to raise but a question of law is the sole question on this appeal.
Some things in the law of negligence are settled and so firmly established by judicial authority as to be binding on the courts as rules of unwritten law, and among those things is, that if a person enters upon a railway track after receiving timely warning that it is about to be used for the passage of trains, he does so at his peril, and if a personal injury results by his being struck by a train, such result is attributable to his contributory negligence, and neither he nor his personal representatives can recover therefor. There are some exceptions to this rule growing out of special circumstances in particular cases, but the facts of this case bring it clearly within the rule. At a railway crossing of a public street in a populous city, especially where there are several side and spur tracks as well as main tracks in frequent use by night and day, the maintenance of crossing gates is one
The adjudicated cases on the questions raised, here are substantially all one way and on the line indicated. Cleary v.
In Sheehan v. P. & R. R. Co., supra, the court said, in substance, that if a person goes upon a railway track regardless-of the warning to him by the presence of the gates across-the approach, and is injured by placing himself in the pathway of an approaching train, without wanton negligence on the part of the railway company’s servants, he cannot recover, whatever he may say about looking- and listening. Though the court treated the failure to observe the approaching train as a distinct act of negligence, precluding a recovery, the act of being on the right of way at all, under the circumstances, was also deemed fatal, Cleary v. P. & R. R. Co., supra, being cited as controlling, and the effect of the opinion and decision said to be as stated.
In Granger v. B. & A. R. Co., supra, the circumstances were that it was dark and misty, so that the lights had al
Perhaps a still stronger case than any before cited is Debbins v. O. C. R. Co. 154 Mass. 402. There a person went upon the railway tracks regardless of the crossing gates being down, in order to board a train that was standing on one of the tracks. There was another train approaching and in dangerous proximity, but obscured from view by the first train mentioned. It was dark and there was no headlight or other means of warning of the approach of the moving train, other than the position of the gates and the noise. Plaintiff was struck by the latter train and severely injured. The court held that he was guilty of gross negligence; that if he had been a mere traveler and undertaken to cross the tracks while the gates were down, knowing that fact, he would have taken the risk and could not have recovered for
The reasoning of tbe cases to which special attention has been called, and of others cited, applies to tbe facts of this case, and meets with unqualified approval. They are in accordance with well-settled principles in tbe law of negligence, and must control here in favor of tbe affirmance of tbe judgment appealed from.
By the Court.— Judgment affirmed.