109 Wis. 69 | Wis. | 1901
The two principal errors assigned consist in the denial of motion to direct a verdict on the ground of plaintiff’s contributory negligence, and in the giving as a rule of law to the jury the sentence quoted in the statement of facts, together with some other instructions further developing the same idea. That sentence is adopted from the opinion in Ward v. C., St. P., M. & O. R. Co. 85 Wis. 601, 604, and, unless later decisions of this court have modified
It will be observed that the instruction under consideration exempts a traveler from the absolute duty to look and listen in the absence of either of two conditions: first, that the situation is such that he may reasonably expect the coming of a train at any and all times; and, second, that his attention is not reasonably arrested or diverted. The first of these exceptions to the rule of duty to look and listen, namely, that the situation must be such that one may reasonably expect a train to pass, was repudiated within a year after the decision of the Ward Case in McKinney v. C. & N. W. R. Co. 81 Wis. 284, under circumstances more strongly inviting its recognition. In the Ward Oase the exception was predicated on the fact that a train had just passed and plaintiff failed to look and see a loose car following it. In the McKinney Case two trains had passed, and plaintiff failed to look and see a third, following more closely than customary and than permitted by rules of the company. Under those circumstances it was said, “ The track itself is a danger signal.” In his dissenting opinion Mr. Justice WiNslow pointed out that the decision in substance overruled the Ward Case. Again, in Schlimgen v. C., M. & St. P. R. Co. 90 Wis. 186, 193, was excluded the possibility of legitimate inference that under any circumstances a railway track is safe; the court saying, “A railroad track is, in effect, a standing proclamation to those approaching it that cars are liable to run thereon at any time.” In Nolan v. M., L. S. & W. R. Co. 91 Wis. 16, 26, the above language was quoted and applied where plaintiff had observed that the train headed west, which injured him, was stationary at the depot, 200 feet away, engaged in loading freight, and his attention was engaged in looking for a train due from the west.
In McCadden v. Abbot, 92 Wis. 551, plaintiff, a fireman,
From these later decisions we think it should have been ■apparent to the trial court that the somewhat obiter remark in the Ward Case that the duty of one to look and listen ■“ depends on the condition that he might reasonably expect the coming of a train at any and all times ” is entirely abrogated. In nearly all of the cases above quoted the Ward Case was urged upon the attention of the court. It is, perhaps, unfortunate that it was not mentioned by name in ■some of the opinions and the implied repudiation of some of its doctrine made explicit. However, in view of the cases above mentioned, it cannot be doubted that the rule of this •court, now settled too firmly to permit question, is that the known presence of a railway track is itself notice of the momentary peril of a passing train at all times, and the duty to look and listen is not relaxed by any opportunity for theorizing or difference of opinion as to whether a train is ■or is not likely to pass. Observation, not logie, is the proper precaution.
In the record before us there is nothing to excuse the conceded omission, while walking a distance of at least fifty feet, to look along the unobscured track to the southward. During most of that distance observation to the north was futile and needless. Plaintiff could not see the train in that direction, and she was in no peril from it till she reached the track. When she did come to a point whence the freight train was in sight, she was still ten or fifteen feet from the track, and the train, moving, as she thought, very slowly, was more than a third of a mile away. It certainly offered no attraction and threatened no peril to preclude her from a glance in the opposite direction. Even had it been so close as to imperil her, nothing prevented her from pausing to give that glance before incurring the other danger, which the existence of the track warned her was imminent and
¥e cannot, without violation of settled rules of law, either approve the instruction given to the jury, or recognize any of the circumstances surrounding plaintiff as sufficient to justify the inference or conclusion that she was not negligent in omitting to look for a train from the south, for which precaution she had ample opportunity. Both of the assignments of error are well taken.
2. We cannot pass silently the reception in evidence of photographs showing rear views of plaintiff’s person, nude from below the shoulders to mid-thigh. Such photographic exposure of the body of a twenty-year-old girl in a court room full of men is even more grossly improper and shocking than the conduct disclosed in Brown v. Swinneford, 44 Wis. 282, 285, of which this court expressed its condemnation in the scathing words of Chief Justice ByaN: “No such indecency is ever necessary, or should be tolerated, in court. If the condition of any private part of the body of any party, male or female, is material on any trial, it should be privately examined by experts out of court, and expert testimony be given of it. Such an exposure as was made in this case, if made without leave of the court, might well be punished as a contempt; made with the sanction of the court, it is none the less improper and' indecent, well calculated to disgrace the administration of justice, and to bring
By the Oourt.— Judgment reversed, and cause remanded for a new trial.