McCadden v. Abbot

| Wis. | Mar 10, 1896

MaRshall, J.

The finding of the jury to the effect that the failure of the deceased, after having observed engine No. 49 at the coal chute, to again look in that direction before venturing upon the railway track, was not negligence on •his part, was a conclusion in respect to a question of law, under the facts of this case, and therefore properly disregarded by the trial court on the motion for judgment.

It appearing undisputed, by the evidence or from the findings of the jury, that the deceased was so circumstanced, before stepping upon the track, that his view in the direction of the coal chute was unobstructed, that there was nothing to divert his attention, and that he ventured into the place of danger without first looking in the direction of the approaching engine, though there was negligence on the part of the engineer in charge of such engine, in respect to the speed he was running and the failure to sound the engine bell, and though, if it had run at the customary rate ■of speed from the coal chute to Michigan avenue, it would not have reached the point where the fatal accident took place till the deceased had passed over the track, he was, nevertheless, guilty of contributory negligence which precludes recovery of damages for his death.

The question here presented has been so recently and thoroughly discussed, and the law in regard to the matter so clearly stated, in the opinion of Mr. Justice Cassoday in Schlimgen v. C., M. & St. P. R. Co. 90 Wis. 194, and also by Mr. Justice Pinney in Nolan v. M., L. S. & W. R. Co. 91 Wis. 16" court="Wis." date_filed="1895-09-26" href="https://app.midpage.ai/document/nolan-v-milwaukee-lake-shore--western-railway-co-8184915?utm_source=webapp" opinion_id="8184915">91 Wis. 16, that a rediscussion of the subject at this time cannot more distinctly state the law applicable to the facts. It may safely be taken as settled, and to be so thoroughly intrenched in' the jurisprudence of this state as not to be open to rediscussion or review, that, when a person approaches a railway track, having an opportunity to look and listen, if he fails so to do before venturing into the place of danger, such failure constitutes contributory negligence, so as to prevent any recovery on the ground of want of ordinary care on the part of those operating cars upon such track. This rule is so rigidly applied that its violation is not excused by want of ordinary care on the part of the railway company or its employees in respect to the speed of trains, or failure to give signals, or in any other respect, even though such failure amounts to a violation of law regulating the operation of trains.

Among the clearest and most recent illustrations of the application of this rule in the courts of other states may be mentioned Nixon v. C., R. I. & P. R. Co. 84 Iowa, 331" court="Iowa" date_filed="1892-01-26" href="https://app.midpage.ai/document/nixon-v-chicago-rock-island--pacific-railway-co-7105203?utm_source=webapp" opinion_id="7105203">84 Iowa, 331, where a person, without having his attention diverted, relying upon the custom to run trains on a particular track in but one direction, looked only in that direction, and was struck by a train coming from the other way, and injured, and it was held that he could not recover, because of failure to look both ways. - Also, Sala v. C., R. I. & P. R. Co. 85 Iowa, 678" court="Iowa" date_filed="1892-05-27" href="https://app.midpage.ai/document/sala-v-chicago-rock-island--pacific-railway-co-7105414?utm_source=webapp" opinion_id="7105414">85 Iowa, 678, where it was held that a person who stepped upon a railway track without looking, and was injured, could not recover for such injury, though there was no flagman at the crossing, as the law required, and the train was running at an unlawful rate of speed. Also, Gardner v. D., L. & N. R. Co. 97 Mich. 240" court="Mich." date_filed="1893-10-27" href="https://app.midpage.ai/document/gardner-v-detroit-lansing--northern-railroad-7936598?utm_source=webapp" opinion_id="7936598">97 Mich. 240, where it is held that a person in attempting to cross a railway track, without first looking both ways, is guilty of contributory negligence, though his attention at the time be diverted by a switch engine in the vicinity. A multitude of other cases might be cited, all to the effect, as said in Schlimgen v. C., M. & St. P. R. Co. 90 Wis. 194, “ that a railway track is, in effect, a standing proclamation of danger.” If a person ■chooses to take a position thereon, without first looking both ways and listening, he ■ must suffer the consequences, without reference to any want of ordinary care on the part •of those operating cars upon such track. Railroad, Co. v. Houston, 95 U.S. 697" court="SCOTUS" date_filed="1878-01-18" href="https://app.midpage.ai/document/railroad-company-v-houston-89653?utm_source=webapp" opinion_id="89653">95 U. S. 697.

It follows from the foregoing that the trial court properly granted defendants’ motion for judgment upon the special verdict in favor of the defendants.

By the Oowt.— Judgment affirmed.