Citation Numbers: 86 Wis. 173
Judges: Lyon
Filed Date: 10/17/1893
Status: Precedential
Modified Date: 9/9/2022
Plaintiff claims that his horse was unused to the cars and unreliable, and that in the exercise of his best judgment he thought it safer to make the attempt to cross the railroad track in front of the train rather than to risk stopping before he reached the track. His counsel invoked in his behalf the rule that, in presence of imminent peril, accuracy of judgment or the choice of the very best means of escaping the peril is not required. The rule has no application to the facts of this case. Strictly obedient to the posted notice requiring him to walk his horse over the bridge, he deliberately allowed the animal to walk fifty-three feet after he saw the approaching train, and then, after sufficient time had elapsed to allow the train to cover half the distance between the point where it was when he first saw it and the crossing, with equal deliberation he commenced his race with the train, driving his horse as rapidly as he could until the engine struck his wagon. Whatever margin should be allowed plaintiff in the choice of means to keep himself, horse, and buggy out
By the Court.— The judgment of the circuit court is re- ■ versed, and the cause will be remanded for a new trial.