Smith v. Chicago & Northwestern Railway Co. , 161 Wis. 560 ( 1915 )

The following opinion was filed October 26, 1915:

Marshall, J.

The question of whether the evidence-would fairly have warranted a jury finding that appellant was free from efficient contributory negligence must be answered in the negative. The fact that he walked for over-200 feet along between the track and the fence, keeping near-enough to the latter to be outside the zone of danger, knowing, or with efficient reason for knowing, that a train was soon expected, and then, without looking or having looked back in. the meantime, though the train was in plain sight at the last and only a few feet away, turned out of the safe way into that of danger, resulting in the accident, seems to make far too clear a case of contributory negligence to admit of holding that the trial court was clearly wrong in so deciding.

The suggestion of counsel that there is no evidence that plaintiff knew of the zone of danger, is met by his own evidence that he walked, commonly, near the fence because-that was the safe place, ^nd by the fact that the danger of walking so near the track, as he did at the instant of the accident, in case of a train approaching, as happened, must have been obvious. Certainly, no warning of the danger was necessary to a person as familiar as appellant must have been with the whole situation.

Slipperiness of the platform is suggested as a possible reason for appellant’s swerving away from the fence; but neither court nor jury could properly act upon mere possibilities. The evidence does not seem to admit of more than the merest conjecture that the condition of the platform had anything to do with the accident. The fatal thing was plaintiff’s turning toward the track without looking back. His testimony that he had traveled but a short distance near the track before he was struck, that, before, he traveled pretty near the fence because it was safer, accords with the evidence of the fireman that he was at a safe distance from the engine until it was within a few feet of him.

The question of whether the headlight statute, sec. 1809-y, Stats., is unconstitutional, does not need to be answered in this case. We conclude to leave that matter open for now. It is sufficient that the statute is entirely immaterial to the situation we have to deal with.

The statute provides that, in case of a violation thereof, the offender “shall be liable for all damages resulting in whole or in part, directly or indirectly, from such violation.” Therefore, to make a case under it, reasonably clear evidence is necessary, that the insufficient headlight had some causal connection with-the damages claimed. We agree with counsel for respondent that there is no sncb evidence in this case. The vicinity of the accident must have been so brilliantly lighted by the nine electric arc lights that appellant had no need for more light to enable him to appreciate his position and surroundings, and it is no more than matter of conjecture that a better headlight would have appreciably added to the illumination. No more efficient headlight was necessary to-enable the trainmen to discover appellant, for he was in plain sight of and was observed by them. No more efficient headlight was necessary to aid in appellant’s knowing of the approaching train, for he knew it was momentarily expected,, and it was in plain sight from his location for some time before and at the instant he turned into the zone of danger. Therefore, clearly, the statute does not cut any figure in the case.

By the Court. — The judgment is affirmed.

A motion for a rehearing was denied, with $25 costs, on December 1, 1915.