160 Wis. 507 | Wis. | 1915
On the motion for nonsuit the circuit judge summed up the situation as follows:
“There is no evidence in the record that the deceased ever looked or listened for an approaching car. If we assume, as the plaintiff urges we must, that the deceased did look and listen before he started to cross the street, then we find he is in the situation where, having observed a car which was about to approach, he starts across the street, taking a path which makes the approaching car come somewhat from his rear; he passes a standing car which obstructs his view, 'passes over an area in which, if he had stopped to look or listen, he could have saved himself from injury; passes in front of the approaching car, without ever looking or listening after he has passed the obstruction, and receives the injury. I am satisfied, under the settled rules of the decisions of this state, that under such circumstances the plaintiff cannot recover.”
The appellant insists that the trial court erred in its conclusion, and argues (1) that deceased could only be held
The rule is established by this court in a long line of decisions that “Due care in approaching a railway track can be satisfied only by full use of the senses of sight and hearing at the last moment of opportunity before passing the line between safety and peril.” Goldmann v. Milwaukee E. R. & L. Co. 123 Wis. 168, 170, 101 N. W. 384; Schroeder v. Wis. Cent. R. Co. 117 Wis. 33, 38, 93 N. W. 837; Morice v. Milwaukee E. R. & L. Co. 129 Wis. 529, 533, 109 N. W. 567; Marshall v. G. B. & W. R. Co. 125 Wis. 96, 103 N. W. 249; Koester v. C. & N. W. R. Co. 106 Wis. 460, 464, 82 N. W. 295; Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W. 179; Schliesleder v. Milwaukee E. R. & L. Co. 147 Wis. 668, 672, 134 N. W. 144; Kowalkowski v. M. N. R. Co. 157 Wis. 473, 476, 146 N. W. 801. Nonobservance of the duty to look and listen is negligence per se. White v. C. & N. W. R. Co. 102 Wis. 489, 493, 78 N. W. 585, and cases cited above.
The two inside tracks were five feet apart; the overhang
By the Gourh — Judgment affirmed.