Sarles v. Chicago, Milwaukee & St. Paul Railway Co. , 1909 Wisc. LEXIS 76 ( 1909 )

Siebecker, J.

The evidence on the question of decedent’s care in driving his team and approaching the railroad track presents a conflict and is susceptible of sustaining different inferences. According to some of the evidence the team was in decedent’s control at all times up to the point of collision, thus tending to show that he either did not look to observe the approaching train before attempting to cross the track after he was within hearing or seeing distance of it, or that he observed the train and attempted to cross immediately in front •of it. In either event he would be guilty of negligence contributing to his death. But, as set out in the statement of facts, there was evidence tending to show that he lost control of his team after he bad passed Dr. Armstrong’s home, and there was evidence that the horses were then trotting and were under his control. Dr. Armstrong’s home is between 250 and 300 feet distant from the railroad crossing. Two witnesses testify that they observed the team when it was approaching the track and was within the space of about 100 feet of it, and that the horses were then jumping and acting as though they were “scared” or “frightened.” Deceased appeared to have hold of both lines and was pulling and holding back. The witnesses testify that the horses continued jumping and rearing until the train struck them, and that the horses appeared to have been frightened at the rapidly approaching train. The train was obscured from decedent’s view until he reached a point sixty-eight feet distant from the track, when he conld look up the track a distance of 570 feet. The traveled portion of the approach to the track was narrow, with a ditch on each side several feet deep. From these facts and circumstances the jury were warranted to infer that the horses became frightened at the approaching train when about sixty-eight feet south of the track, that the decedent from that time was unable to retain control of them, and that he could not stop them or divert them from continuing in their course and prevent colliding with the train. Such circumstances present a case where the failure of the driver of a team to look and listen for an approaching train and to stop his team, if necessary for his safety, is excused because the circumstances show that the horses were beyond his control and that he was irresistibly deprived of the opportunity to perform his duty. To establish that the team was beyond decedent’s control does not call for a showing that the team was uncontrollable in the-sense that they were in a state of frenzy and were running at a very great speed from fright. The team may have been beyond decedent’s control in the sense that he was unable, by the use of all reasonable efforts, to control and prevent them, under the impulse of fright induced by the noise and speed of the train, from proceeding onto the track at a time of danger of collision with the train. Such a state of affairs immediately preceding and up to the time of collision constitutes a good and sufficient ground for excusing the driver from the performance of the usual duty to look and listen for the train and to stop, if necessary for his safety, before attempting to cross a railroad track. Piper v. C., M. & St. P. R. Co. 77 Wis. 247, 46 N. W. 165; Guhl v. Whitcomb, 109 Wis. 69, 85 N. W. 142; Kujawa v. C., M. & St. P. R. Co. 135 Wis. 562, 116 N. W. 249. We are of opinion that the trial court ruled properly in submitting this issue upon the evidence.

The contention that tire jury’s finding in answer to the second question shows that the team was uncontrollable at a point so remote from tbe crossing t-bat it could not have been frightened at the approaching train, and hence that the defendant’s negligence was not the proximate cause of the injury, cannot be sustained. There was evidence that the horses were not frightened before they arrived at a point about sixty-eight feet distant from the crossing; that the decedent had control of the horses up to this point; that the horses were not frightened or going faster than a trot until they came close to defendant’s right of way; and that at this point they became frightened and unmanageable. The credibility and weight of this evidence were for the jury, and if the jury gave it credence the findings negative the claim that the team became frightened and uncontrollable from some cause other than the train.

These considerations call for affirmance of the rulings of the trial court.

By the Court. — Judgment affirmed.