Nolan v. Milwaukee, Lake Shore & Western Railway Co.

91 Wis. 16 | Wis. | 1895

PiNNEY, J.

1. The plaintiff’s counsel contends that the circuit court erred in not holding that under the provisions of ch. 467, Laws of 1891, the defendant was absolutely liable for all damage caused to the plaintiff on a traveled street of the village of Eeedsville by running its locomotive on the occasion in question faster than fifteen miles an hour, without causing the engine bell to be rung before and while crossing such street.

The only act in force prior to said cb. 467, concerning the speed of railway trains, was sec. 1809, R. S., which, limited the speed of trains in cities and villages to six miles an hour, and required the engine bell to be rung before and while crossing their streets. Ry sec. 1819, for a violation of sec. 1809 a penalty was imposed and also a liability “ to the person injured for all damages sustained thereby.” Beyond all question sec. 1809 had no application to unincorporated villages, for by sec. 4972, R. S., it was provided as a rule of construction of the Revised Statutes that “ the word ‘ village ’ imports only a municipal corporation organized by some special act or under some general law, except when a definition shall be expressly given to the same.” Thus stood the law until the enactment of ch. 467, Laws of 1891, which is an act relating to the same general subject-matter as the former law, and is, no doubt, to be construed with it and as an act in pmi materia. It is apparent from ch. 467 that its purpose was to relieve railroad corporations from the necessity and delay of slowing down all their trains while passing through incorporated cities and villages to six-miles an hour, irrespective of their size or population, which, in the case of passenger and through freight trains, must have tended to produce unnecessary delay; but this was on condition that some adequate security should be afforded in the case of an increased rate of speed to fifteen miles an hour, and to that end it was provided that such a corporation “ shall not run its trains or locomotives faster than fifteen miles an hour until after having passed all the traveled streets thereof, and shall cause the engine bell to be rung before and while crossing such streets. Provided, however, that gates shall first be placed and maintained upon such street crossings within cities and incorporated villages over which trains shall pass, as the public authorities of any such city or village may direct.” This act retains, in its second section, the provision making any company violating or failing to-comply with its provisions “ liable to any person injured for all damages caused thereby,” and imposes, in addition, a forfeiture of not less than $50 nor more than $100, to be recovered only by an action in the name of the state.

Ch. 467 plainly appears to be a revision of the entire subject-matter of the previously existing provisions relating to the speed of railway trains and precautions to be observed in passing through cities and incorporated villages. “A'village is a small inhabited place; an assemblage of houses in the country, less than a town or city, and inhabited chiefly by farmers and other laboring people.” ‘Webst. Diet. tit. Tillage. Any small assemblage of houses for dwellings or business or both, in the country, constitutes a village, whether they are situated upon regularly laid-out streets and alleys or not. Anderson, Law Diet.; Ill. Cent. R. Co. v. Williams, 27 Ill. 49. In view of the obvious purpose of the act, to allow, within prescribed limitations, an increased rate of speed from six miles to fifteen miles an hour, it cannot be supposed that the legislature intended to extend the provisions of the act to unincorporated villages, which would impose upon railroad corporations an increased burden or necessity of slowing up and ringing the bell at every small assemblage or group of houses in the country, or at every cross-roads. Besides, the title of the act — “ An act to limit the rate of speed of railroad trains and locomotives in incorporated, villages and cities ”— may be resorted to, it seems, to ascertain its purpose. School Directors of Pelican v. School Directors of Rock Falls, 81 Wis. 428, 434; Mundt v. S. & F. du L. R. Co. 31 Wis. 451-462; State ex rel. Rochester v. Racine Co. 70 Wis. 543. The word “village,” in the original statute, having had a definite meaning including only those which were incorporated, in view of the title to the act in question, which expressly mentions only incorporated villages, and the use of the same words, “ incorporated villages,” in the proviso of sec. 1, together with the evident purpose of the act and the previous provisions of law relating to the same general subject, make the rule of construction relative to statutes m parri materia laid down by the authorities cited by the defendant’s .counsel applicable, and make it plain that ch. 467, Laws of 1891, is not applicable to-the passage of railroad trains or locomotives through unincorporated villages.

' It follows that the absolute rule of liability contended for does not apply, and, as it is not contended but that the defendant was guilty of negligence in the management of its locomotive, the only question to be considered is whether the plaintiff is precluded from maintaining his action by reason of contributory negligence on his part.

2. The evidence of the plaintiff shows clearly that, while-the train was at the station platform, loading or unloading, he was giving his attention to matters about which he was engaged, and was interesting himself about tying up the-bull that had been loaded in the stock car, and whether it could be accomplished before the train would arrive from the west, into which the stock car was to be taken. His back seems to have been turned toward the locomotive and train at the station, and he was looking in an opposite direction, and mainly toward the stock car; but he did look partially over his shoulder and see the train and locomotive at the station. He knew it was there only for the purpose of loading or unloading freight. Nothing whatever occurred! which could fairly or properly divert or take his attention from the fact of the presence of the train, and that it or the locomotive might at any moment move out to the west on the main track, unless it be said that giving his attention entirely to the securing of the bull and looking for the stock train, so that he gave but little attention to his own safety from injury by the train at the station, was a diversion of attention, excusing or. palliating negligence on his part. But this we cannot allow. He had no right to busy himself with concerns in which he was interested, to the neglect of his personal safety, and to charge the defendant with the consequences, however serious. The exercise of proper care for his personal safety was his paramount duty. Standing with his back to the approaching locomotive, and ignorant of its approach, he turned and stepped into the track without looking for the locomotive or train; and the cowcatcher instantly had him, as he says, by the heels. He testifies that he listened, but this must. be understood, we think, in the sense that one always has his ears open to the reception of sound; but it seems obvious that his attention was not upon the locomotive or train, for, if it was, it seems impossible that in broad daylight, with no obstruction between him and the locomotive, it could have approached so close to him, without his knowledge, that he stepped upon the track, unconscious of its presence, immediately in front of the cowcatcher. He says he did not look; that he had looked shortly before, exchanged some words with Cooney, and turned and stepped into the track. It is evident that he talked longer with Cooney than he remembered. The rule quite rigidly applied is that one who approaches a railway track is bound to both look and listen to guard against danger from a moving train. He is bound to use his eyes and his ears, not only in respect to impending danger from a moving train or locomotive, but he is bound to vigilant observation by looking and listening in respect to a locomotive or train that may be quickly put in motion to his great peril if he neglects this caution. Had he looked, instead of only listening, he would certainly have avoided injury; and this illustrates the necessity of the rule. He was not absolved from the duty to look by reason of the negligent conduct of the defendant.

Several cases quite like the present have been recently decided in this court, to which reference will be appropriate. In Schlimgen v. C., M. & St. P. R. Co. 90 Wis. 194, where the injured party, while upon depot grounds, stepped, without looking, immediately in front of an approaching train, it was laid down that: “A railroad track is, in effect, a standing proclamation to one approaching it that cars are liable to run thereon at anytime; and especially is this so on depot grounds. This court has repeatedly held that a person approaching a railroad track must use his eyes in looking and his ears in listening. The looking and the listening must, as a general rule, be contemporaneous with the act of approaching and crossing.” "Very many other cases were there cited, illustrating and sustaining the views here expressed. The obligation resting upon the party about to cross the track to exercise ordinary care to escape injury in crossing is just as binding as the obligation resting on the servants of the company to use ordinary care to avoid danger and prevent injury to him. The case of Lofdahl v. M., St. P. & S. S. M. R. Co. 88 Wis. 421, is, in the main, quite in point. Here, as there, the party injured was aware of the near presence of a train on the track, on which, in that case, he was standing with his back towards it, engaged in an altercation with the conductor of the train on which he had been riding for putting him off, when the train behind him was moved forward by the fireman, without signals and in a negligent manner, so that it ran upon and injured him. Here the plaintiff, while giving his attention to matters in which he was interested, without looking in the direction of the locomotive, stepped upon and into the track directly in front of it, so that his injury was practically instantaneous. The cases of Hansen v. C., M. & St. P. R. Co. 83 Wis. 631; Schmolze v. C., M. & St. P. R. Co. 83 Wis. 659; and Wilber v. Wis. Central Co. 86 Wis. 335, may be profitably consulted on the question under consideration.

It is impossible to say that the party in charge of the engine was guilty of wilful, wanton, or criminal negligence. There is no evidence to show that he saw the plaintiff, and, if he did, he had no right to expect that he would step directly in front of tbe engine, or that be was about to cross tbe track.

Tbe case is distinguishable from Johnson v. L. S. T. & T. Co. 86 Wis. 64. In that case tbe injured party, wbo was walking south on tbe track, bad seen tbe train pass to tbe north, and supposed it was going quite a distance up to tbe smelting works, but tbe train unexpectedly returned south and ran upon him when be bad walked a distance of only about ninety feet. He bad listened, but bad not looked. He bad located tbe train going north and away from him; and under all tbe facts of that case it was left to tbe jury to say whether walking ninety feet without looking again was contributory negligence. Here tbe locomotive was facing tbe defendant only 200 feet distant, and liable to start towards him at any moment; and yet, while in a place of safety, be stepped into a place of peril without looking, and immediately in front of tbe locomotive moving at tbe rate of from eighteen to twenty-five miles per hour, trusting only to bis sense of bearing to warn him of tbe danger.

Upon tbe undisputed evidence, we must bold that tbe plaintiff was guilty of contributory negligence in not looking when be stepped upon tbe track, and that it is not palliated by tbe fact that be looked just before, at a time when tbe locomotive was standing still twelve rods distant.

By the Coivrt.— Tbe judgment of tbe circuit court is affirmed.