191 Wis. 130 | Wis. | 1926
So far as the special verdict is concerned, the judgment in plaintiff’s favor in each of the two causes of action must be based upon the conclusion reached by the jury and approved by the trial court that there was negligence by defendant’s flagman at the west end of the crossing in his failure both to signal and to warn the driver of the automobile of the danger from the approaching train from the south at the easterly end of the crossing, because there was an express finding, not challenged by plaintiff, that there was no negligence in the crew of the train striking the automobile and no question was submitted to the jury as to any possible negligence of the flagman at the east end.
There is some contradiction and confusion in the testimony as to just what was done by the flagman at the west end, he having seen, as he testified, this train approaching from “the south at the east end at the time the automobile crossed the west tracks, so that it was fairly a jury question whether what the flagman did might have reasonably been considered by the occupants of the automobile as an invitation to enter upon the tracks at the westerly end rather than as a warning to proceed no further or to halt before reaching the easterly tracks. Assuming, as we properly should and may, that there was a failure by this first flagman to either warn or signal as the automobile approached and crossed the first of the westerly tracks, there still remains the important question whether such negligence can be held, under the law, the proximate cause of the injuries to and death of Rusczck.
At several places along the crossing between the westerly and easterly tracks a look to the south would have disclosed the approach of the train, and when within a short distance from the main track in question there could be seen for some distance the headlight on the approaching engine on the straight track south of the crossing. ' It is undisputed
It is true there is no evidence to show just what was being done or observed by Rusczck or the driver of the automobile in the interval of time between crossing the westerly track and approaching the main tracks, and therefore the deceased, as well as the driver of the automobile, is entitled to the presumption which the law recognizes that parties will not knowingly and consciously place themselves in imminent danger, because of the natural instinct of self-preservation. Sweeo v. C. & N. W. R. Co. 183 Wis. 234, 238, 197 N. W. 805; Worsley v. Johnson, 172 Wis. 325, 330, 178 N. W. 457. But such presumption and other facts relied upon by plaintiff in support of the verdict and judgment cannot overcome the weight that we are compelled to give to the firmly established rule so often reiterated, and in cases of just such disasters, that the known existence of a railroad track is of itself a warning, and he who so acts as to enter into the zone of such danger without seeing or hearing that which, if he had seen or heard, would have given him the requisite warning of the approaching train, must be held to. be lacking in ordinary care for his own and others’ safety so as to make it, in the eye of the law, negligence proximately causing the result. Meissner v. Southern Wis. R. Co. 160 Wis. 507, 509, 152 N. W. 291;
In this case, therefore, assuming that there was negligence chargeable to the defendant by the conduct of the flagman at the west end in allowing the automobile to enter upon or proceed further across the network' of tracks, yet such negligence did not and could not absolve the driver of the automobile, in proceeding the rest of the distance within which there were frequent opportunities to see or- hear and ascertain whether or not a train was approaching, "of his duty to so look and learn before placing his car and its occupants in the zone of deadly danger.. The negligence of the driver, therefore, was a negligence intervening between any possible negligence by the flagman at the west end and the disastrous result. Such intervening negligence broke the chain of causation necessary to remain unbroken in order to charge liability upon the defendant for any possible negligence by its flagman at the west end. Wilczynski v. Milwaukee E. R. & L. Co. 171 Wis. 508, 513, 177 N. W. 876; Vaillant v. C. & N. W. R. Co. 163 Wis. 548, 158 N. W. 311;, Atchison, T. & S. F. R. Co. v. Calhoun, 213 U. S. 1, 7, 29 Sup. Ct. 321; Davis v. Schroeder, 291 Fed. 47, 51 (a case quite similar in facts to the case here) ; Stone v. B. & A. R. Co. 171 Mass. 536, 540, 51 N. E. 1.
It is urged by plaintiff — there having been no question submitted to the jury and no finding by them as to whether or not there was possible negligence by the flagman at the east end of the crossing, who, under the defendant’s evidence, was standing on Garden street beyond the most east
We cannot, however, so hold because the negligence of the driver is so plainly an intervening and the proximate ■cause of the collision, that the present result cannot be altered. For as the only witnesses relied upon by plaintiff, namely, the two boys in the automobile, testify that there was no flagman at the east end, then manifestly the driver of the' automobile could not have been induced to proceed because of anything that such flagman might have done. On the other hand, the testimony by the flagman himself and other witnesses that he was there stationed at about the center of the crossing was to the effect that he was giving the warning to the occupants of the approaching car, which warnings, if any such were given, were so clearly disregarded by the driver of the automobile. Because,, therefore, we find we are unable to avoid the conclusion that the real proximate cause for this terrible result was, under the law as applicable to the record here, the negligence of the driver of the automobile, there cannot be found a proper support for the judgment against defendant-as to either of the causes of action herein involved. This disposition of the case makes it unnecessary to consider other questions raised on this appeal.
By the Court. — Judgment reversed.
