146 Wis. 99 | Wis. | 1911
The sole question on this appeal is whether the finding of the jury that the plaintiff was not guilty of more than a slight want of ordinary care which proximately contributed to the injury is supported by the evidence. It is claimed on the part of the appellant that the undisputed evidence shows that the plaintiff was guilty of more than a slight want of ordinary care.
Broad street in the city of Kenosha runs east and west, is about thirty-six feet wide, and is crossed by three tracks of the defendant running north and south. The most easterly track is the south-bound main, the next west is the northbound main, and the next and most westerly track of the three is known as a switch or passing track. The gauge of these several tracks is four feet eight and one-half inches inside the rail. Rrom the center of the side track to the center of the north-bound main is 14.7 feet; from the center of the north-bound main to the center of the south-bound main is 13 feet, making the distance from the center of the side track to the center of the south-bound main 2Y.7 feet. North of Broad street for several thousand feet the tracks of defendant are straight.
On the 29th day of May, 1908, the plaintiff, then between fourteen and fifteen years of age, was employed as a delivery boy, and at about 9 :30 a. m. on the day named made a delivery of meat at a point on Broad street 300 feet west of defendant’s tracks, making the trip on a bicycle. On returning he went east on the north side of Broad street, stopped at a point about 100 feet west of the defendant’s tracks to talk
There is evidence that the plaintiff, being on the west side of the tracks, walked east holding his bicycle until he reached the west or side track, looked north and saw no- train, but saw the north-bound passenger, waited in the- center of the switch track about ten seconds until the passenger train passed Broad street; that after the passenger train had gone by he stepped east a step or two to the west rail of the west main or north-bound track, glanced north, saw no train approaching, got on his wheel, and started to go across; that he got on his wheel in the ordinary way, leaned a little over the handle bars in order to get on; that he was on his bicycle and a little over the center of the east or south-bound track when struck by a freight train going south; that the passenger train was
Subd. 1, sec. 1809, Stats. (Laws of 1907, ch. 595), provides that no railroad company whose line of road extends into or through any incorporated city or village shall run a train or locomotive faster than twelve miles an hour while approaching and within twenty rods of any public traveled grade street crossing in such city or village;, and subd. 3 provides that no such railroad company shall run any train or locomotive over any public traveled grade crossing within any incorporated city or village except wherein gates are erected, maintained, and operated, or a flagman is stationed, unless the engine bell shall be rung continuously within twenty rods of and until such crossing shall be reached by such train or locomotive. Subd. 6 provides that where injury or death is caused by the negligent omission of a i*ailroad company to comply with the requirements of sec. 1809, the fact that the person injured or killed was guilty of a slight want of ordinary care contributing to the injury or death shall not bar recovery. The plaintiff being a minor between fourteen and fifteen years of age, the duty to exercise care which the law imposed upon him independent of statute was the exercise of such care as the great mass of boys of the age, intelligence, experience, and knowledge of plaintiff usually and ordinarily exercise under the same or similar circumstances. Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563; Anderson v. Chicago B. Co. 127 Wis. 273, 106 N. W. 1077; Coppins v. Jefferson, 126 Wis. 578, 105 N. W. 1078; Pumorlo v. Merrill, 125 Wis. 102, 103 N. W. 464; Montanye v. Northern E. Mfg. Co. 127 Wis. 22, 105 N. W. 1043; Briese v: Maechtle, ante, p. 89, 130 N. W. 893; 2 Cooley, Torts (3d ed.) *823.
It cannot be said that the acts of the plaintiff were not characterized by at least some degree of ordinary care. The jury would have been justified in finding that he did not rush
True, plaintiff might have gone to the south-bound track ■and looked north from a point where he had an unobstructed view before crossing, but the question is whether, under all the circumstances, it was not for the jury to say whether his •failure to do so was or was not more than a slight want of or■dinary care. Hoveland v. Nat. B. Works, 134 Wis. 343, 114 N. W. 795; Murphy v. Herold Co. 137 Wis. 609, 119 N. W. 294; Zeratsky v. C., M. & St. P. R. Co. 141 Wis. 423, 123 N. W. 904.
Erom all the evidence we are convinced that the question whether the plaintiff was guilty of more than a slight want of ordinary care was for the jury, and their finding upon that
By the Court. — The judgment of tbe court below is affirmed.