Duffy v. Chicago & Northwestern Railway Co. , 32 Wis. 269 ( 1873 )

Cole, J.

We are not informed by the record upon what precise ground the circuit court granted the nonsuit in this case.

It is argued in the first place by the counsel for the defendant company, that tbe evidence entirely fails to show that by the construction of tbe railroad track at tbe place where tbe accident happened tbe highway was rendered insufficient or dangerous; or that there was any negligence on the part of the agents in the management of the freight train. It does clearly appear, however, that the railroad track approaches the highway at that crossing from the north through a deep cut, and that the highway has been excavated down to a level with the track, forming a high bank of earth in the northeast angle, which prevents a person coming from the south from seeing a train coming from the north, until he is very near the track. The evidence tended to show that the highway just south ol the crossing ran along between a ditch on the left and the bank on the right, and was too narrow for a team attached to a wagon to turn around in safety. There was testimony from which the jury might have found that the highway was not restored by the company to its former usefulness, within the meaning of the statute, and that the crossing at that place was attended with more than the usual peril. The witness Slight described the place, substantially as follows: “There was a hill in the highway, and there is a deep cut for the railroad right through it. It is a high bank The cut for the railroad through there is north and south. The high road is cut down to a level with the railroad. Before the railroad was built, we used to go a little south of the present crossing. * * The height of the bank on the right I never measured, but it is some feet above my head. It is a very bad crossing; a person coming up from the city and going north is going into a pocket, a three cornered place ; when you get up near the crossing of the railroad, you have to get your team on the track before you can see up the track; if there is any trouble you can’t get elear ; you have no chance to turn again; there is not space enough ; it is not wide enough to turn around, If the head of the horses is on the track, I think the wagon stands in fourteen or fifteen feet space between the bank on the right and the ditch on the left.” There was other testimony to the same effect. This evidence certainly tended to show that the company, by constructing its road across the highway at that place in the manner it did, had failed in its duty and had not restored such highway “ to its former usefulness."

Again, there was testimony which tended to show, and from which the jury might reasonably have inferred, that no whistle was sounded, nor bell rung, until the locomotive reached the crossing. This crossing was within the corporate limits of the city of Watertown. The statute made it the duty of those having charge of the train, to ring the bell or give some warning of the approach of the train to persons traveling on the highway and advancing upon that crossing. A failure to perform this duty would be negligence, which would render the company liable for an injury sustained in consequence of this neglect of duty. A warning given just as the engine came upon the crossing would afford but little protection to the traveling public, and would not enable a person approaching the crossing with a team to avoid danger.

Then, upon the question of contributory negligence on the part of the plaintiff, it is insisted by the counsel for the company that the testimony shows that he was not in the exercise of proper care when he approached the crossing, and that the nonsuit was right for that reason. It does not appear that the plaintiff was guilty of any carelessness or want of care in approaching the crossing. He says that he listened some for the train, but did not hear anything. He supposed the train from the north had passed down, and he was looking out for the train from the south more than from the north. The track at the north was so obstructed by the high bank on the right that it was impossible for the plaintiff to see the train approaching from that direction until he was within fifteen feet of the track. All the precaution he could take to ascertain whether a train was approaching was to listen as he advanced towards the crossing, unless he stopped his team, got out of his wagon, and went upon tbe track and looked north for the train. But this would be exercising extraordinary care, and diligence greater than the law imposed upon him. The cases to which we are referred by the counsel for the plaintiff are decisive upon this question. (See Davis et al. v. N. Y. C. & H. R. R. Co., 47 N. Y., 400; Richardson v. N. Y. C. R. R. Co., 45 id., 847; Ernst v. Hudson River R. R. Co., 35 id., 10; Mackay v. N. Y. C. R. R., id., 75 ; Beisiegel v. N. Y. C. R. R., 84 id., 622.)

This case is clearly distinguishable from that of Rothe v. The Mil. & St. P. R. R. Co., 21 Wis., 256. There the deceased, after placing two bags of shorts on his right shoulder, which completely obstructed his view on that side, and doubtless prevented him from hearing with the right ear, deliberately walked upon the track, and was struck by moving cars. He voluntarily deprived himself of sight in the direction the cars were coming, and took no precautions to make sure that the road was clear. (See Butler v. The Mil. & St. Paul R'y Co., 28 Wis., 488.) Here the plaintiff did make all the use of his sense of sight and hearing that he could; but, on account of the deep cut and high bank on his right, he could neither see nor hear the approaching train.

It seems to us the court should have submitted the case to the jury upon proper instructions as to the rule of law applicable to the facts. Whether the injury was caused by any neglect of duty on the part of the company in originally constructing its road at that highway crossing in the manner it did; or whether those in charge of the train omitted the statutory requirements of blowing the whistle or ringing the bell while approaching the crossing, or were running at a greater rate of speed than six miles an hour; these questions, together with the question whether the plaintiff was guilty of any contributory negligence, were matters for the jury to detetmine upon the evidence.

By the Court.— The judgment of the circuit court is reversed, and a new trial awarded.