Steber v. Chicago & Northwestern Railway Co.

115 Wis. 200 | Wis. | 1902

MaRShall, J.

Very little can profitably be said in deciding tbis case. Four errors are assigned. All, so far as they relate to tbe issues made by tbe pleadings, may be properly resolved into tbis one proposition: Did tbe trial court err in deciding that tbe evidence disclosed, as a matter of law, contributory negligence on tbe part of tbe deceased ? We are unable to see bow, in tbe light of well-settled legal principles, tbe affirmative of that can be considerately urged. Tbe duty of a person about to step upon a railway track to look both ways and listen, and to discover those dangers which can be readily discovered by tbe exercise of ordinary attention to that end by .one so circumstanced, and not to1 go upon tbe track in tbe face of such dangers, is absolute. It is as firmly established as any rule of law can well be. If it were a fact, as claimed in tbis case, that tbe deceased bad tbe rights of a passenger as regards care for her safety by tbe railway company, and that she bad no other way of reaching her destination than by going across tbe railway track, that does not constitute any exception to tbe general rule stated. She was bound to exercise ordinary care for her own safety, and she fell below that standard in failing to use her senses to discover tbe approaching engine, since, from all reasonable inferences from tbe evidence, it was in sight and bearing and so near tbe crossing as to render it dangerous for her to step upon tbe track when she did so. As we read tbe evidence and tbe argument of counsel for appellant, there is no claim that she looked north, on tbe track or listened for a coming train or engine before she proceeded into tbe region of danger. Counsel seems to think that she bad the rights of a passenger, and that no other way to reach her destination than tbe one she pursued was open to ber, bence that sbe was excused for proceeding as sbe did, regardless of tbe probability of danger, and was warranted in depending upon respondent to avoid injuring ber. We know of no sucb rule of law. There is no sucb rule. No one is excusable for stepping upon a railway track without first using tbe precautions we have stated for bis own protection. As has often been said, tbe mere presence of the track is an efficient warning of danger. That warning must be reasonably heeded by a person about to cross tbe track, else be will be presumed conclusively, as a matter of law, to assume tbe risk of doing otherwise. Lofdahl v. M., St. P. & S. S. M. R. Co. 88 Wis. 421, 60 N. W. 195; Flynn v. Eastern R. Co. 83 Wis. 238, 53 N. W. 494; Hansen v. C., M. & St. P. R. Co. 83 Wis. 631, 53 N. W. 909; Schmolze v. C., M. & St. P. R. Co. 83 Wis. 659, 53 N. W. 743, 54 N. W. 106; Schlimgen v. C., M. & St. P. R. Co. 90 Wis. 194, 62 N. W. 1045; Nolan v. M., L. S. & W. R. Co. 91 Wis. 16, 64 N. W. 319; Lockwood v. Belle City St. R. Co. 92 Wis. 97, 65 N. W. 866; McCadden v. Abbot, 92 Wis. 551, 66 N. W. 694; Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W. 179; White v. C. & N. W. R. Co. 102 Wis. 489, 78 N. W. 585; Walters v. C., M. & St. P. R. Co. 104 Wis. 257, 80 N. W. 451; Buckmaster v. C. & N. W. R. Co. 108 Wis. 353, 84 N. W. 845; Dummer v. Milwaukee E. R. & L. Co. 108 Wis. 589, 84 N. W. 853.

Tbe subject involved in this appeal has been so often before this court, as indicated by tbe cases cited and many not mentioned, and tbe law has been so often declared as stated herein, that there is no room in tbe evidence presented by tbe record for reasonable contention that tbe trial court erred in directing the verdict. Tbe way was open for tbe deceased to see tbe approaching engine. If sbe bad looked north on tbe switch track before she stepped upon it sbe would have observed tbe danger. Sbe must either have failed to perform her duty as to looking, or have observed tbe engine before getting in its pathway and heedlessly attempted to rush across the track before it reached her. The legal responsibility for the consequences rests wholly upon the unfortunate woman. The damages caused to her surviving husband were in law so far produced by her that there is no way by which her fault can be so separated from that of respondent, if respondent was also at fault, as to fix upon the latter legal responsibility.

By the Court. — The judgment is affirmed.