81 Wis. 41 | Wis. | 1892
The following opinion was filed November 17, 1891:
This is an action to recover for personal injuries sustained by plaintiff by being - struck by one of
The first contention made by the appellant is that the evidence does not justify the findings of the jury of negligence in the running of the engine. In the view which we take of the case, we shall assume that these findings are supported by the evidence and are facts in the case. The situation then is that the servants of the railroad company negligently drove this wild engine, without warning, at the rate of thirty miles an hour, through the village and depot grounds, and in so doing struck and injured the respondent. Under these circumstances, if the respondent was in the exercise of ordinary care, he would be entitled to recover; otherwise not. So the question is, Does the proof warrant a verdict that the respondent, Olson, was exercising ordinary care when he was struck?
Olson’s own testimony shows that he left his horses unhitched on the other side of and near the track, and went on the platform at the west end of the depot, where he was totally cut off from any view of the track to the east-' ward; that while tíiere he heard some one call out that a train was coming; that h*e saw and knew there was no train coming from the west; that he expected it was coming from the east, and started to save his team with that expectation. It also appeared that when he got onto the lower passenger platform near the track he could look to the eastward and see the approaching train. It appears to be settled by his own evidence that he did not look eastward.
Common sense and common prudence certainly require that when a person approaches a railway track, knowing that a train is coming, he should look to see where the train is as soon as he reaches a place where it is possible to do so. Ordinarily, a person who fails to look under such circumstances, and for that reason is run over by a train, is guilty of want of ordinary care. Is there anything in the evidence to take the case out of the ordinary rule? It is unquestioned that when respondent reached the lower platform he could see the approaching train if he had looked. Was there anything in the fact that he had left his team unhitched on the other side of the track that justified him. in neglecting ordinary rules of caution? We certainly think not. That was a negligent act of itself; and can it be reasonably urged that an act apparently negligent is purged of that quality solely because it was an attempt to repair the consequences of the same person’s previous negligence? Such a position seems untenable and unreasonable. Compare Kearney v. C., M. & St. P. R. Co. 47 Wis. 144.
But it is said by respondent’s counsel that after respondent’s first leap he was overwhelmed by the danger and horror of his position, and that negligence cannot be predicated upon his conduct then, because he was placed in sudden and terrible peril by the act of appellant’s servants. There are two answers to this proposition: First. The. respondent persistently and repeatedly testifies that he did.
Upon the facts, most of which are undisputed and sworn to by respondent himself, we cannot support a verdict to the effect that plaintiff was exercising ordinary care.
By the Ooiort.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.
Upon a motion for a rehearing, counsel for the respondent, to the point that it is not negligence, as a matter' of law, to leave a team unhitched near a railroad track, cited Wasmer v. D., L. & W. R. Co. 80 N. Y. 212, 217, 218; 1 Thomp. Neg. 354, sec. 18; Streett v. Laumier, 34 Mo. 469.
The following opinion was filed January 12, 1892:
Careful consideration of the very able briefs presented us upon the motion for rehearing has strengthened our belief in the correctness of the decision. One expression in the opinion, however, is possibly subject to-criticism. We refer to that part of the opinion where it is. said that the plaintiff’s _ act in leaving his team unhitched near the railroad track was a negligent act.
In this case it appeared from the plaintiff’s own evidence that the team was young and high-lifed and afraid of the. cars, and that he left them unattended and unhitched within nineteen feet of a railway track. Under these circumstances, we are satisfied that. the plaintiff’s act was' negligence as matter of law.
But, while persuaded that our remarks were strictly correct as applied to this case, we perceive the' possibility of' ■their being construed to mean that it is negligence in every case for a man to leave a team of horses unhitched and un
By the Court.— It is so ordered.