Roth v. Chicago, Milwaukee & St. Paul Railway Co. ( 1925 )

Doerfler, J.

Defendant’s counsel first argue that the testimony clearly* shows that their client was not guilty of any negligence, and that the jury’s answers to the questions of the special verdict in that behalf are not supported by any credible evidence. We have carefully reviewed the evidence appearing in the record and are satisfied that there is sufficient credible evidence in the case to sustain the jury’s findings of negligence both as to speed and failure to ring the bell. No useful purpose, therefore, could be served by a review of the evidence, and we will therefore refrain therefrom.

The vital question with which we are concerned involves a consideration of whether or not, as a matter of law, it should be held by this court that the plaintiff was guilty of negligence which proximately contributed to his injuries. That this is a close question is conceded by the learned trial judge in his opinion. It conclusively appears that the plaintiff was aware of the existence of the spur track. He had crossed it several days previous to the accident. He was fully aware of the danger which might confront him from the time that he left Williamson street with his truck and entered the private driveway. In passing along this driveway he apprehended fully that a train might approach from either the east or the west. He carefully listened but heard nothing. He carefully looked for over a distance of 100 feet, but could see nothing, by reason of the obstructions preventing a view. The sheds on both sides of the driveway along the right of way were clearly within his vision. Ill approaching the track he could not help but realize the dangerous situation before him, for his view was fully obstructed both to the right and to the left. The presence of a railroad track is always a signal of danger, and the degree of care which a traveler under such cii'cumstances is required to exercise must at all times be commensurate with such danger. When he looked to the right he was at a point where he was about to enter the danger zone. During the time consumed in exercising this precaution the front wheels of his truck had proceeded to a point where they were ready to .cross the nearest rail. Turning to the left he saw the train approaching at a distance of about twelve feet. He was then in a dilemma from which it was extremely difficult to extricate himself. There is no question but that at that time he exercised due precaution. However, it has been repeatedly held by this court that before entering the zone of danger at a railroad crossing a traveler must resort not only to his sense of hearing but also to his sense of vision. Clearly, the various views taken by him before he came in close proximity to the defendant’s right of way were absolutely futile on account of the existing obstructions. It then became incumbent upon him to exercise properly his sense of vision at a time where the same would be available to him in such a way as to protect him from injury. In such a situation it becomes necessary, in order that his vision may be properly exercised, to slow up his speed or to stop his machine. That is the care which the law imposes upon him. He cannot blindly proceed on a railroad track, where trains may be operated at any time, without having complied with these essential and necessary precautions. Looking toward the west at a time when the vehicle had already proceeded into the danger zone amounts to an exercise of no precaution whatever. True, the evidence establishes that plaintiff exercised fully his sense of hearing. But, as has been repeatedly held by this court, the exercise of that sense is not always reliable, owing to weather conditions.

From the evidence in this case we are forced to the inevitable conclusion that the plaintiff was guilty of negligence which proximately contributed to his injury and to produce the damage, and that such negligence, even though sec. 192.27, Stats., were applicable herein, would amount to more than a slight want of ordinary care. The view thus expressed is fully sustained by the following cases: Nolan v. M., L. S. & W. R. Co. 91 Wis. 16, 64 N. W. 319; Koester v. C. & N. W. R. Co. 106 Wis. 460, 82 N. W. 295; White v. M., St. P. & S. S. M. R. Co. 147 Wis. 141, 133 N. W. 148] Bahlert v. C., M. & St. P. R. Co. 175 Wis. 481, 185 N. W. 515; Tzoist v. M., St. P. & S. S. M. R. Co. 178 Wis. 513, 190 N. W. 449; Plautz v. C., M. & St. P. R. Co. 180 Wis. 126, 192 N. W. 381; Sweeo v. C. & N. W. R. Co. 183 Wis. 234, 197 N. W. 805.

By the Court. — Judgment reversed, and the cause is remanded with directions to dismiss plaintiff’s complaint.