93 Wis. 505 | Wis. | 1896
It will be seen from the foregoing statement that the present case is quite similar in its facts to the case of Haetsch v. C. & N. W. R. Co. 87 Wis. 304. In both cases there was sufficient evidence to establish negligence on the part of the defendant. In both cases the deceased was seated
All but the first of these alleged differences substantially disappear upon close examination of the evidence. Though the evidence shows that the night was foggy, it shows also that the fog was not such as to materially obscure the vision; certainly that the fog was not sufficient to prevent a traveler in the situation of the deceased from plainly seeing the headlight of the locomotive at any time after the engine came over the crest of the hill. This evidence came almost entirely from the witnesses for the plaintiff, who testify to having
It is true that there was testimony in the Haetsch Oase' from the fireman of the engine to the effect that he saw the deceased whipping his horse, apparently in order to get across the track before the train; but it will be seen from the opinion on page 308, 87 Wis., that this fact was substantially eliminated from consideration in determining the question of the negligence of the deceased. The case was decided without reference to that fact.
As to the familiarity with the crossing, the difference between the two cases is not substantial. In the Haetsch Case the deceased had passed over the crossing far more frequently, but it affirmatively appears in the present case that the deceased was entirely familiar with the road over which he was traveling. He had been a resident of the county for years. He had lived on the farm where he lived at the time of his death nearly two months. From this farm the railroad (though not the crossing) was in sight. His route to Elkhorn, the nearest trading town, was over this road, and he had used it half a dozen times, and on the very trip in question he had said before he left home that perhaps he might wait at Elkhorn until this very train came in. It is idle to claim that he was not perfectly familiar with the road, the crossing, and the train.
As to the view of the train which a traveler upon the highway in the situation of the plaintiff could have had at the time of the accident, and the distance from the crossing at which he could see the approaching headlight, it is claimed that there is a substantial dispute in the testimony, and that there is evidence tending to show that he could not see it until
Thus it will be seen that the only material point in which the case before -us is stronger for the plaintiff than the Maetseh Case is the fact that the speed of the engine in the ■present case, when it crossed the center line of the highway, was limited by law to fifteen miles an hour, whereas in fact ■the evidence tended to show that the speed was as much as sixty miles an hour. This fact is entitled to consideration in determining the question of the alleged contributory negligence of the deceased. The deceased had the right to act upon the assumption that the train would not be moving at a. greater rate than fifteen miles an hour when it crossed .that highway. Piper v. C., M. & St. P. R. Co. 77 Wis. 247. We do not think that this consideration, however, can save the deceased from the imputation of contributory negligence as a matter of law which must follow from the other facts in «evidence. The plaintiff’s own evidence satisfactorily showed, without dispute, that the deceased was a careful driver .and accustomed to handling horses; that his horse was well broken and easily managed; that the deceased undoubtedly .approached the crossing at a moderate rate of speed, not exceeding four miles an hour; and that his horse did not run, but pursued an even gait clear up to the crossing. The nature of the evidence which clearly showed these two last-mentioned facts heed not be detailed; it is sufficient to say that they were satisfactorily proven. These facts, taken in connection with the facts previously referred to in this opinion, namely, that the headlight of the engine could have been seen by the deceased at any point within a distance of -500 feet from the track as soon as the light appeared above
These facts, as before stated, negative any presumption of ordinary care, and show affirmatively lack of such care. It demonstrates either that the deceased did not look at all, or that, having looked, he deliberately, and with his horse under control, took the risk. In either case there can be no recovery.
By the Ooiort.— Judgment affirmed.