Fox v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

147 Wis. 310 | Wis. | 1911

Siebeceeb, J.

The trial court directed the jury to find that under the evidence adduced no cause of action existed. The complaint charges that the defendant’s servants were guilty of gross negligence and that it caused decedent’s death. The argument is made that if such servants on the engine, while crossing the street in question, were keeping a lookout for the decedent, they must have seen him in a position of peril of being run down by their engine, and that they must have proceeded deliberately in their course and have run into bim wilfully; or tbat as they passed over tbe street crossing occupied by the decedent they wholly omitted to keep a lookout for him, and hence in causing his death were guilty of misconduct which, under the circumstances, was gross negligence. The facts and circumstances shown by the evidence fail to furnish a basis for either inference. A summary of the evidence is given in the foregoing statement. Does the evidence tend to show that the members of the switching crew on the engine must have seen the decedent in a position of peril on the track before the moving engine if they kept a lookout in approaching and passing over the crossing? All the positive testimony of these employees is that they kept a vigilant lookout for persons at the crossing and that they did not see the decedent. It is contended that this evidence is wholly overcome by the admitted and the physical facts of the situation bearing on this question. The facts relied on to support this contention are that the crossing was clearly lighted by electric lights located on the side of the street above the crossing; that the headlight on the tender of the engine necessarily illuminated the place where the decedent stood as they approached him; that he had a signal lantern with a green light plainly visible from the engine; and that there was no obstruction that could prevent the men on the engine from seeing him.

In view of the conditions at the crossing and decedent’s presence it does not necessarily follow that he was in view of the men on the engine keeping a lookout for persons on the track as they approached and passed onto the crossing. T-Tis position may have been obscured, as is claimed, by tree branches, by the foggy and smoky condition of the atmosphere, and the passing logging train interfering with the light. Again, the decedent may have occupied a place outside of the track and outside of the lighted portion of the street until the engine came into close proximity to him and he may then have moved suddenly into the place of danger. Nor can it be said that the light of the lantern he had was necessarily visible to the men on the engine. This may have been extinguished or have been obscured in some way by the position in which he carried it. Under the circumstances it would be a violent inference to hold that these men, in fact, saw the decedent in a perilous situation, if they were looking as they testify they were. Nor do the conceded facts and physical conditions of the situation presented necessarily impeach the evidence of the witnesses so as to warrant the conclusion that their evidence is wholly incredible. We perceive no merit in appellant’s contention upon this branch of the case, and consider that the circuit court was justified in holding as matter of law, upon the evidence of the switching crew, that they in fact kept a lookout, as they assert, and that they did not see the decedent, and hence were not guilty of gross negligence in this respect.

The further claim is urged that the jury in the consideration of the evidence would have been justified to conclude that while in the act of running this engine and tender over the crossing the men in charge of the engine omitted to keep a lookout for persons upon this crossing, and that such omission on their part constituted gross negligence in the light of the imminent danger to persons from the engine passing over the crossing. To predicate gross negligence on this ground it must appear that the passing of this crossing without a lookout being kept, with an engine as here shown, was such reckless and wanton conduct as to suggest that the men on the engine'were wholly indifferent as regards the rights and safety of persons whose peril of being injured they must be held, under the circumstances, to have known.

“The danger of inflicting a personal injury upon a person by the conduct of another must be such as to reasonably permit of a belief that such other either contemplated producing it, or, being conscious of the danger that it would occur, imposed that danger upon such person in utter disregard of the consequences, to warrant saying, reasonably, that the circumstances indicate willingness to perpetrate such injury.” Bolin v. C., St. P., M. & C. R. Co. 108 Wis. 333, 84 N. W. 446; Wilson v. Chippewa Valley E. R. Co. 120 Wis. 636, 98 N. W. 536; Haverlund v. C., St. P., M. & O. R. Co. 143 Wis. 415, 128 N. W. 273.

The evidence showing the use of this crossing by the public at the time in question is wholly barren of anything tending -to show that those running the engine were necessarily informed that they would inflict injuries upon a person in passing oyer it at the' speed and in the manner they traveled. It appears that all approach from the north was intercepted by the logging train, and it was well understood that it was the decedent’s duty to guard the crossing and to warn people to keep off it to avoid the danger of passing trains. These facts refute any claim that the engine crew as they approached the crossing were apprised of any actual and known dangers to persons from this engine. The inferences from all the facts and circumstances negative any grounds tending to show that there was such imminent danger to any one in passing over the crossing as to make an omission to keep a lookout in driving the engine over it gross negligence.

Upon any theory of the facts it is clear that the plaintiff has failed to adduce evidence tending to establish a cause of action for gross negligence. The circuit court property dismissed the complaint.

By the Court. — Judgment affirmed.