137 Wis. 97 | Wis. | 1908
Lead Opinion
The respondent brought this action to recover damages, for personal injuries suffered at the crossing of a highway by defendant’s railroad, and the following facts appear without dispute: On the 17th day of May, 1906, in the forenoon, respondent, while going home from Menominee Ralls, was injured at Haylet’s Crossing by means of a collision between his team and appellant’s locomotive. At Haylet’s Crossing appellant’s railroad ran in a northeasterly and southwesterly direction and the highway ran in an easterly and westerly direction. Seven hundred and fifty feet along the railroad tract northeast of Haylet’s Crossing there was another highway crossing called Zink’s Crossing. The highway at Zink’s Crossing ran in a northerly and southerly direction and turned west at Haylet’s Corner and continued
There is evidence to support a finding that no bell was rung or whistle sounded by the train approaching from the northeast. Just as the horses were about stepping over the first rail plaintiff heard a rattle that sounded like the cars. He looked up and the train was close on him, and he tried to-back off the track and shouted to let the engine men know he was there, and at this moment the locomotive struck the horses near the fore part of their bodies, carried them down the track,' and threw part of the wagon and the plaintiff against the side of the locomotive, injuring him severely.
It is conceded that there was evidence to support the verdict finding the defendant negligent, and only two questions-are raised upon this appeal; the first being whether or not upon the facts above set forth the plaintiff was guilty as matter of law of contributory negligence so that a nonsuit should have been granted or a verdict directed for the defendant; and, second, whether the court erred in refusing to instruct the jury as requested by the defendant.
We are unable to discover any substantial ground of difference helpful to the respondent 'between this case and the case of Marshall v. G. B. & W. R. Co. 125 Wis. 96, 103 N. W. 249, and Hain v. C., M. & St. P. R. Co. 135 Wis. 303, 116 N. W. 20. In each of the three cases the railway crossed the highway at an acute angle, the person injured was driving a team toward the crossing, and failed to continue to look and listen up to the time the horses stepped upon the track, having looked and listened some distance back — forty or fifty feet in the Ma/rshall Case, four or five rods, that is, sixty-six or eighty-two and one-half feet, in the Hain Oase, and fifty-three feet in the instant case. The writer and Mr. Justice Siebeckeb dissented in the Hain
“The duty to look and listen is absolute when the opportunity exists; that duty is not excused by mere diversion of attention, as it may be in highway cases, but there must be circumstances for which the traveler is not responsible which •so irresistibly force his attention to something else as to deprive him of the opportunity to perform the duty.”
Eespondent’s counsel contends that in the case at bar the attention of the plaintiff was irresistibly diverted from his duty to continue to look and listen after he started up his team and until he reached the track by the fact that his horses were high spirited and, although going on a walk, were prancing, and that plaintiff was driving along a raised causeway fifteen or sixteen feet wide and four feet high, on either side •of which was marsh. By comparing this with the facts' in the TIain Case, supra, it will be seen how insufficient it is to make out a case of irresistible diversion from the duty of continuing to look and listen until he reached the track. This reference to the Hain Case is to show by comparison
We do not see bow it can be correctly said that the plaintiff had no opportunity to look and listen while traveling over the fifty-three feet of space which intervened between the point where he stopped, looked, and listened, and the nearest rail of the track, and, although his attention was diverted, we cannot say that it was irresistibly diverted. We cannot bend the law to the equities and exigencies of particular-cases. Without certainty of rule and uniformity of decision rights and liabilities would rest in judicial discretion rather than in rules of law. If these rules relative to the degree of care required of one approaching a railway crossing are to be changed, it is not for this court, in view of the Tong line of precedents here established, to make that change. This makes it unnecessary to consider the exceptions to the charge.
By the Gourt. — The judgment of the circuit court is reversed, and the cause remanded with directions to dismiss-the complaint.
Dissenting Opinion
(dissenting). I am unable to agree with the conclusion reached by the court in this case. The evidence is undisputed that the plaintiff stopped his team at the last favorable place to stop, when his horses were fifty-three
It is true that this court has laid down the rule that a traveler approaching a railroad track must look and listen at the last opportunity, and to this rule there is only the exception that where the traveler’s attention is irresistibly forced to something else he may be excused. Guhl v. Whitcomb, 109 Wis. 69, 85 N. W. 142; Hain v. C., M. & St. P. R. Co. 135 Wis. 303, 116 N. W. 20. It seems clear to me that the words “irresistibly forced,” as here used, cannot have their literal meaning of actual physical compulsion, because the conduct of his team, though they be not beyond control, may be such as to “force” him to give them his exclusive attention, as this court has held. Piper v. C., M. & St. P. R. Co. 77 Wis. 247, 46 N. W. 165, as explained in Schneider v. C., M. & St. P. R. Co. 99 Wis. 378, 75 N. W. 169. The words must therefore have a construction not strictly literal, and it seems to me they cover a case where a reasonably prudent man, after looking and listening at the last favorable point and in close proximity to the track, starts to cross, and the conduct of his team is such that he feels that duty imperatively requires him to give them his-sole attention. I think it was a question for the jury to determine whether such was the situation here, and therefore I dissent.