Fannin v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

185 Wis. 30 | Wis. | 1924

Eschweiler, J.

Upon the testimony of plaintiff his own contributory negligence appears so clearly and conclusively as to require a reversal of the judgment and a dismissal of the action.

He was long familiar with this crossing. He approached it after dark at a speed of fifteen to eighteen miles an hour, at which rate he could bring his car to a stop in about two rods. He did not slacken his speed until after he entered the smoke which he claims shut off a view of the standing train, and at a point about one rod from it. Then, realizing that there was not sufficient time to stop, he turned sharply to the side. As a result of the collision with the freight car the radiator of the automobile was broken off and pushed back under the wind-shield and the engine knocked off of its base.

Assuming for the purpose of the disposition of this case that there was negligence on defendant’s part in failing to exercise the requisite amount of care on its part, there can be no escape from the conclusion that the plaintiff was himself negligent in so driving in the nighttime along a familiar highway, knowing of the existence and location of the railroad crossing; the near-by station; and chargeable with knowledge of the possible presence of a train either standing on or moving over the crossing. If the cloud of smoke was so thick and heavy as to obscure the outlines of the standing train, the existence of such a wall of smoke between himself and the train ought, in the exercise of reasonable care that the law charges upon such drivers, to have been discovered by him with the aid of his lights at least two rods or more before he drove into such obstacle to his vision. Ordinary care required him to stop or substantially lessen his rate of speed before plunging on and into such obstruction. Whether the impossibility of seeing the freight car across the highway was due to the darkness or to the cloud of smoke is entirely immaterial so far as the question of what was due and proper care for his own safety is concerned. That contributory negligence of the kind here displayed is a bar to recovery- has been clearly and repeatedly declared by this court. We need merely refer to the following decisions: Lauson v. Fond du Lac, 141 Wis. 57, 62, 123 N. W. 629; McMillan v. C., M. & St. P. R. Co. 179 Wis. 323, 328, 191 N. W. 510; Worden v. C. & N. W. R. Co. 180 Wis. 551, 193 N. W. 356; Yano v. Stott B. Co. 184 Wis. 492, 199 N. W. 48.

His driving into the cloud of smoke obscuring, if it did so, his vision of the highway, is substantially the same want of care as that of one in the daytime driving into a cloud of dust, as was discussed, although not a determining factor, in the case of Johnson v. Prideaux, 176 Wis. 375, 379, 187 N. W. 207.

By the Court. — Judgment reversed, with directions to dismiss the complaint.