Flynn v. Eastern Railway Co. of Minnesota, 83 Wis. 238

Flynn v. Eastern Railway Co. of Minnesota

83 Wis. 238 | Wis. | 1892

Winslow, J.

It is unnecessary to decide whether the evidence was sufficient to prove that “ Belknap Street,” so called, was a legal highway at the crossing where the accident happened. Whether it was a highway, or whether the railway company had simply licensed people to cross its tracks and cars as best they could, is not material in the ¡view which we take of the case. In either event the law imposed on the deceased the duty of exercising ordinary care in attempting to cross the tracks. If the court must say, upon the facts presented, that the deceased did not exercise ordinary care, and that as a consequence thereof she was killed, no discussion of the question of the existence of a legal highway or of the degree of care required of or exercised by defendant’s servants is necessary. The evidence seems to our minds to demonstrate very clearly that the deceased was guilty of contributory negligence which must defeat a recovery, whatever may have been the negligence of the defendant.

It appears beyond doubt that the crossing had never been prepared for travel; that it had been used since 1888 as a part of the switch yards of the company; that it was always obstructed to a greater or less degree with trains of standing freight cars, frequently as many as half a dozen in number, and sometimes more; that no attempt was made to leave passageway for travelers; that openings were sometimes left, but apparently merely accidentally and not intentionally; that people who crossed we.re generally compelled to crawl under or climb between cars, or pass through them upon extemporized bridges; that switching and moving of cars wits liable to take place at any time,— in short, that the railway company always treated it as simply a part of their switching yard, for the transaction of their business. It also appears that the deceased had. frequently crossed the tracks at this crossing; that she had lived near the steel plant for some time; that her husband *245bad been in the employ of the company and had charge of these tracks for thirteen or fourteen months before this accident; that she must have well known the facts as to the use of these tracks and the danger incurred in crossing them. She was a,n adult, in full possession of her faculties, and when she reached the place of the accident it was daylight. She could see that, beyond the. opening through which she passed, the way was blocked by several solid trains of freight cars. Under these circumstances, the opening could not be construed by any reasonable person as an invitation to pass through it. There was nothing to indicate that the opening had been made to accommodate travelers, because the way was completely blocked by five or six other trains. Had she got safely through the opening, she knew that there were several trains which she would have to crawl under or pass through in some equally hazardous method. With the knowledge she had of the use constantly made of these tracks, and with the obstructions which she could not help seeing before her, it seems to us that the attempt to pass through the narrow space where she was crushed was nothing short of foolhardy. Had she been crushed while crawling under a car, no one would contend that she was exercising ordinary care. It is difficult to see wherein her passing through this narrow opening was materially different. Had she carefully looked before entering the gap, she could have seen the detached cars coming down the track, because the view was clear and unobstructed. If she did see them coming, and attempted to cross, she voluntarily assumed the risk; if she did not look, or looked so carelessly as not to observe what was plainly visible, she was negligent. In either case no recovery can be had.

The citation of adjudicated cases does not help in consideration of the question. No two cases are alike in their facts. Upon the facts of this case we must hold that the *246deceased was guilty of negligence in entering'the gap between the cars, which must prevent a recovery.

By the Court — Judgment reversed, and cause remanded for a new trial.