146 Wis. 466 | Wis. | 1911
Tbe questions raised by the assignments of error are (1) negligence of defendant; (2) contributory negligence of deceased; (3) improper admission of evidence; and (4) denial of motion for new trial.
Tbe private crossing where tbe injury occurred was known as tbe Seater crossing, and tbe public crossing as tbe Red Wing crossing, and tbe latter was one mile northwest of tbe private crossing. There is evidence tending to show that tbe defendant’s track approaches tbe Seater crossing on a two-degree curve. This crossing leads from tbe bouse and bam of deceased on high land north or northeast to tbe track and to
In the forenoon of December 5, 1908, deceased with his two sons, Elmer, aged seventeen, and William, aged fifteen, left
It is strenuously argued on the part of the appellant that .a verdict should have been directed for the reason that there was no proof of negligence on the part of the defendant; that .failure to blow the whistle and ring the bell as the train approached the Red Wing crossing and failure to blow the whistle and ring the bell while approaching the private crossing where the accident happened was not negligence. We shall spend no time on the negligence charged respecting the failure ■to give any warning as the train approached the public cross
The private crossing was constructed at the time the railroad was built some twenty years before the injury, and af-terwards maintained by defendant. It had been used by the-occupiers of the Seater farm and some others. The evidence-shows that this private crossing was dangerous because of the overhanging hill, the curve, the difficulty in hearing an approaching train, as well as the physical condition of the crossing. There is evidence that at the speed the train was running it would be on the crossing in about ten seconds from the time it could be seen by a person standing on the crossing. The unwritten law, therefore, in the absence of statute, made-it the duty of defendant to signal the approach of the train, if in the exercise of its duty ordinary care required it to do> so. Duffy v. C. & N. W. R. Co. 32 Wis. 269; Seefeld v. C., M. & St. P. R. Co. 70 Wis. 216, 35 N. W. 278; Kujawa v. C., M. & St. P. R. Co. 135 Wis. 562, 116 R. W. 249; Winstanley v. C., M. & St. P. R. Co. 72 Wis. 375, 39 R. W. 856; Eilert v. G. B. & M. R. Co. 48 Wis. 606, 4 N. W. 769; Swift v. Staten Island R. T. R. Co. 123 N. Y. 645, 25 N. E. 378; Hartman v. C. G. W. R. Co. 132 Iowa, 582, 110 N. W. 10; Nichols v. C., M. & St. P. R. Co. 125 Iowa, 236, 100 N. W. 1115.
In the instant case the court is of opinion that whether the-defendant was guilty of negligence in failing to signal the approach of the train before reaching tire private crossing was a question for the jury.
It is argued that the proximate cause of the injury was the fright of the horses, not the failure to signal the approach of the train. We do not regard this contention tenable. Sarles v. C., M. & St. P. R. Co. 138 Wis. 498, 120 N. W. 232; Kujawa v. C., M. & St. P. R. Co. 135 Wis. 562, 116 N. W. 249.
The evidence shows that the deceased used caution in going upon the crossing. He stopped at the upper gate and listened for a train, went on the crossing, and looked and listened. No train was in sight or could be heard, the evidence tends to show.
In so far as the answers of the jury to the questions in the special verdict are material to this case, in our view of it,
The evidence respecting signals for the Red Wing crossing was, even if improperly admitted, not prejudicial, and the-evidence tending to show that no signal was given on approaching the Seater or private crossing was properly admitted. Nor was there error in refusal to submit to the jury the question requested respecting the duty of the deceased to constantly look up the track in the direction from which the train was coming.
The court is of opinion that the judgment below is right and must be affirmed.
By the Court. — The judgment is affirmed.