Rowart v. Kewaunee, Green Bay & Western Railroad, 175 Wis. 286

175 Wis. 286 | Wis. | 1921

Vinje, J.

In actions such as this, where it is shown by undisputed, competent, admissible evidence that the deceased was guilty of a want of ordinary care exceeding a slight want thereof, as a matter of law, which proximately contributed to his death, alleged procedural errors will not be considered because they cannot affect the ultimate result of defendant’s nonliability which inevitably follows from the existence of such contributory negligence. Thus it has been held that where defendant’s negligence is shown as a matter of law no finding by the jury that it exists is necessary. Jirachek v. Milwaukee E. R. & L. Co. 139 Wis. 505, 121 N. W. 326.

It is undisputed that Gallagher signaled the deceased to stop about eighty feet from the crossing, and that he continued to signal him till he was forced to step aside in order not to be run over by the taxi; that Gallagher when so signaling was some distance north of the railroad track and in the middle of the traveled track of the street. Russell, on the east end of the east car, signaled the deceased to stop, and both Gallagher and Russell shouted so loud that persons inside homes about a block away heard it. The deceased, a man twenty-six years of age with normal hearing and vision, had a clear, unobstructed view of the crossing and of the cars from where he started up the last time and continuously from there up to the track. An arc light was burning at the crossing so that the whole situation was plainly visible.

It was the duty of the deceased to look for cars after starting up the last time when he was eighty feet from the track. McKinney v. C. & N. W. R. Co. 87 Wis. 282, 58 N. W. 386; White v. C. & N. W. R. Co. 102 Wis. 489, 78 N. W. 585; Guhl v. Whitcomb, 109 Wis. 69, 85 N. W. 142; White v. M., St. P. & S. S. M. R. Co. 147 Wis. 141, 133 N. W. 148.

Had he done so he could not have failed to see them, for they were in plain view. It was also his duty to look ahead in the' direction in which he was driving, and had he done so he would have seen Gallagher signaling him to stop. He must either have been oblivious to his surroundings or else he recklessly disregarded both the lantern signals and the shoutings. In either case he was guilty of the negligence found. Puhr v. C. & N. W. R. Co. 171 Wis. 154, 176

N. W. 767. Under the evidence the jury would have erred had they failed to find that deceased was not guilty of a want of ordinary care exceeding a slight want thereof, because it establishes the contributory negligence found as a matter of law.

By the Court. — Judgment affirmed.