153 Wis. 108 | Wis. | 1913
Lead Opinion
By sec. 1809 of the Statutes the legislature has endeavored by various imperative requirements to eliminate as far as possible the dangers of the grade crossing.
Sub. 1 of this section prohibits the running of a train or locomotive in any incorporated city or village faster than twelve miles per hour while approaching and within twenty rods of any grade street crossing. Sub. 2 provides that whenever a railroad company “shall erect, maintain and operate” gates, or “maintain a flagman” at any such grade crossing, a train or locomotive may be run at a speed not exceeding thirty miles an hour, and if it shall maintain “an eflicient electric bell or signal properly installed and kept in good working order,” at a speed not exceeding twenty miles an hour, while approaching and within twenty rods of and while crossing such grade crossing. Sub. 3 provides for the ringing of the engine bell continuously while approaching such crossings, except where gates or flagmen are maintained. Sub. 4 provides for the blowing of the whistle and the continuous ringing of the engine bell as the engine approaches a country grade crossing. Sub. 5 requires the erection and maintenance of signs at all highway crossings, and sub. 6 provides that in any action brought to recover for personal injuries or death, if it appears that such injuries or death was caused by the “omission” of a railroad company to comply with any of the requirements of the section, the fact that the person injured or killed was guilty of any want of ordinary
In the present case it was found upon sufficient evidence that the train which struck and killed the deceased approached and crossed State street at a speed exceeding twelve miles an hour; hence, unless the defendant company maintained either gates, a flagman, or an electric bell or signal at the crossing, there was clearly a violation of the statute by the railroad company in this instance, which, if it proximately caused the death of Jorgenson, renders the railroad company liable therefor in the absence of gross negligence on his part.
It is argued by the appellant (1) that, as to a foot passenger approaching from the west, the gates were maintained within the meaning of the law if the west gates were operated, even though the east gates were out of commission; (2) that “maintain,-and operate” gates does not mean to keep in perfect condition every minute whatever happens, but must be reasonably construed as meaning only a duty to keep them in a state of repair, i. e. to put competent operators in charge, employ competent repair men, and use reasonable diligence to keep the same in continuous operation; (3) that neither the failure to have the east gafe down nor the maintaining of a speed exceeding twelve miles an hour, in the absence of gates or a bell, can be held to be an omission to “comply with the requirements” of the statute.
We are not disposed to adopt any narrow or restricted view of the requirements of this statute. It is said to be a drastic statute, and there is more or less tiuth in the statement. It is also, however, a statute in favorem vitce. The legislature, in view of the appalling frequency 'of grade-crossing accidents, deemed it best to safeguard the public by requiring careful and somewhat burdensome precautions to be taken by
We can give no such restricted meaning to the statute before us as counsel for defendant claim should be given to it. Its words are specific and clear. The railroad company is relieved of the twelve-mile restriction when it “shall erect, maintain and operate” the gates, not when it shall erect and keep them in repair, or exercise due care to operate them. It is not necessary now to decide what conclusion we might reach in a case where the apparatus was suddenly wrecked by accident and, before opportunity for repair, a passenger was killed or injured on the crossing by reason of the absence of the gates. That case is not here. In the present case the east gate had been out of commission for more than nine hours at a crossing in a populous city where 150 trains a day cross the street. If the repair of the gates required the services of an expert workman not immediately at hand, the statute could have been satisfied by the placing of a flagman at the crossing for the time being, or the sx>eed of trains could have been temporarily reduced to meet the new situation, and we hold that it was the duty of the defendant to adopt one or the other of these two courses. As to the contention that the statute is satisfied so far as an east-bound passenger is concerned, if the west gate alone be operated, the same general propositions apply. It is plain that there might well be cases where the failure to operate the gates upon one side of the crossing
We have not been able to appreciate the argument made under the third head above referred to, and will simply say that we are unable to agree with it.
We reach the conclusion, therefore, that under the undisputed evidence gates were not maintained at this crossing at the time of the accident in question.
Was there an “efficient electric alarm bell or signal properly installed and kept in good working order” at this crossing at the time of the accident? Plainly this question must be answered in the negative on the undisputed evidence. The legislature evidently had in mind a known, common appliance with which every one who does any considerable amount of traveling by rail is familiar, namely, a bell or gong arranged with electric wires, so as to ring automatically and continuously so long as a car or engine is on the crossing or within a given distance of the crossing on either side. It is not for any person to say that a bell operated by hand and rung continuously during the same time answers' every purpose of the law, and hence ought to be considered as satisfying the statutes. Ita, lex scripta, est. Only by compliance with the law as written is a speed exceeding twelve miles an hour permitted. In the present case there has been no compliance with the law as written, either with respect to the gates or the bell.
It is argued that the deceased was guilty of gross negligence as matter of law, and hence that the court should have changed the answer to the seventh question and rendered judg
That meaning has been so thoroughly intrenched and established here that it must be conclusively presumed that tbe legislature knew of such meaning, and used tbe words deliberately intending to give them their established legal significance. Tbe words do not seem to be very happily applied to situations where tbe first and perhaps tbe only serious result of tbe act under consideration will probably be tbe death of tbe actor himself or bis serious injury; still, gross negligence under its accepted definition here would cover not merely a suicidal act, but any entry on tbe crossing with a reckless disregard of tbe consequences, not caring what result might happen to himself or to tbe innocent occupants of a train.. It is by no means infrequent that a man partially intoxicated drives bis horses over a grade crossing in utter and reckless disregard of consequences, thereby wantonly endangering not only bis own life, but tbe lives of many others.
We find ourselves unable to say as matter of law that tbe deceased in tbe present case was guilty of gross negligence as tbe term is understood in Wisconsin. True, tbe proof showed
The question whether any omission or omissions to comply with any of the requirements of sec. 1809 can properly be held to have proximately caused the death of Jorgenson still remains to be considered.
The first requirement is that no train or locomotive shall approach a grade crossing in any incorporated city or village at a greater speed than twelve miles an hour, provided, however, that if the company maintain gates or a flagman a speed of not exceeding thirty miles an hour may be lawfully used, and in default of these, if it maintain an electric bell, a speed of not exceeding twenty miles an hour may be lawfully used* These provisos are not requirements perhaps in the strictest sense. No railroad company is required by the law to maintain flagman, gates, or bell (except as it may be said that the third subdivision requires the company to comply with local municipal regulations in this regard) ; but if the railroad company wishes to operate its trains at a greater spéed than twelve miles an hour while approaching such grade crossings, it is required to maintain and operate one or the other of these safety devices. In this sense these provisions are requirements. The defendant here chose to install and attempt, to maintain gates, and thus be allowed to run its trains at a speed exceeding twelve miles an hour. If, after installing
It is argued that the excessive speed of the train cannot properly be held to be the proximate cause of the accident because the deceased would have met with the same disastrous results had he stepped in front of a train going twelve miles an hour, and the doctrine of the case of Holdridge v. Mendenhall, 108 Wis. 1, 83 N. W. 1109, and the Pennsylvania cases therein cited, is relied upon as authority for the position. All these cases are cases where a child, without looking, ran against or immediately in front of a moving street car in plain sight, and it was apparent that whatever the speed of the car was it bore no proximate causal relation to the accident. This proximate causal relation must exist if there is to be a legal liability based upon excessive speed. Whether it does exist or not will necessarily depend on the surrounding circumstances in each case.
In the present case the crossing was a much used crossing in a populous city. It is in evidence that as the deceased emerged from behind the switch engine and while he was crossing over the eight-foot space between the west and east tracks he looked both north and south. It is also in evidence that considerable quantities of smoke and steam from
How far up the track the deceased was able to look is not-capable of proof, hut the fact that he kept on his course steadily eastward, without hurrying his steps, justifies the inference that he could look far enough so that he would have been safe in crossing if the approaching locomotive was going at the rate of twelve miles an hour instead of at a higher rate. He had almost reached a place of safety when struck. It seems fairly certain that a very small decrease in the speed would have spelled life instead of death. We feel unable to say that the unlawful and negligent speed was not properly found to he the proximate cause of the accident.
Ho other questions require discussion.
By the Oourt. — Judgment affirmed.
Dissenting Opinion
(dissenting'). Sec. 1809, Stats., imposes an absolute liability for injury at a grade crossing in cities, where a train is running at a speed of more than twelve miles an hour and not to exceed twenty miles an hour, unless
I do not disagree with the conclusion of the court that none of the safeguards above provided for were maintained at the time of the accident. I also think that the jury might find that the accident would not have happened had the east gates been in working order. Still I think a case for recovery under the statute was not made out. As I read the evidence, it would not support, a finding by the jury that the speed of the train at the time of the accident exceeded twenty miles an hour. The train might lawfully be run at this rate of speed if an electric bell had been maintained. The liability created by the statute does not exist in such a case unless the failure to maintain such a bell caused the injury. The proof is clear and uncontradicted that the gong in the tower was loud and clear when sounded and that it was constantly sounded from the time the deceased approached the west gates until he was struck. I am unable to see how any one can say that if a bell operated by electricity had been installed and was in working order the deceased would not have entered upon the tracks, when he disregarded a signal in every way as well calculated to give notice of the approach of a train. Unless it can be said that the electric bell would deter him although the gong did not, the absence of the electric bell did not cause the injury and the defense of contributory negligence would be available. The legislature no doubt prescribed the use of an electric bell because it works automatically and is sure in operation when properly cared for. That the deceased would
The jury did not pass on the actual speed of the train. If the record contains anything more than a mere scintilla of evidence to show that the speed exceeded twenty miles an