Piper v. Chicago, Milwaukee & St. Paul Railway Co.

Railroads: Injury to ¡person at street crossing: Unlawful rate of speed: Contributory negligence: Court and jury. 1. To run a train at an unlawful rate of speed within the limits of a city is negligence. 2. When a traveler -on a public street in a city approaches a railway crossing he may properly assume, if nothing appears to the contrary, that a train is moving at a lawful rate of speed; and if it was moving at an unlawful rate, that fact may be considered in determining the question of contributory negligence. 8. In an action for injuries sustained at a railway crossing in a city, the testimony tended to show, among other things, that when between fifty and sixty feet from the crossing the plaintiff looked in the direction from which the defendant’s train was coming, and did not see it, though he could have seen it had it then been within 900 feet of the crossing; that his attention was diverted by the conduct of his horses, so that he did not look again in that direction until he reached the track, when the train was so near that a collision could not be avoided; that the train was running thirty-six miles or more an hour, and that no warning was given as it approached the crossing : and that if the train had been 900 feet away when the plaintiff first looked, and had been running at the lawful rate of six miles an hour, he would have passed far beyond the crossing before the train reached it. Held, that it could not be said, as a matter of law, that the plaintiff was guilty of contributory negligence. 4 Although the statute did not require the whistle to be blown at that place, if those in charge of the train saw the plaintiff approaching the crossing and believed that he was unaware of the train’s approach, it was their duty to sound the whistle as well as to take every other reasonable precaution to prevent the collision. 5. It was not error to charge that it was the peculiar province of the jury to decide whether the whistle was blown at the whistling post, or the engine hell rung before and while passing over the crossing, as well as the rate of speed at which the train approached the same.

APPEAL from the Circuit Court for Jefferson County. The following statement of the case was prepared by Mr. Justice Cassoday: This is an action for damages sustained October 18,1888, ' at a street crossing of the defendant’s railway track one mile east of its Watertown depot, and within the city limits but outside of the platted portion thereof. It appears from the undisputed evidence that the railway at that point runs a very little north of west and south of east, and is straight for two miles east of the crossing, and for more than 1,100-feet west of the crossing; that the street mentioned is what is known as the “ Old Milwaukee Eoad,” and crosses the railway at that point in a northwesterly and southeasterly direction, forming an acute angle of twenty-seven and one half degrees; that such highway had existed for about forty years, and is the main traveled thoroughfare from Pipers-ville to Watertown; that the railroad track for 215 feet east of the crossing is above the ground on the southerly side about four and one half feet; that at the end of that distance commences a cut which extends easterly for about 275 feet further, the deepest part of which is 400 feet from the crossing at the south right-of-way fence, where the top of the bank is six and three fourths feet above the level of the crossing; that from that point, which is about 600 feet east of the crossing, there commences a second cut, known as the “ deep cut,” which continues easterly beyond the whistling post, which is a quarter of a mile from the crossing ; that the highest part of the embankment on the southerly side of that deep cut is about twenty-two feet above the track at a point about 1,100 feet east from the crossing that the space between said right of way and the highway near and east of the crossing contained many trees, a house,, barn, sheds, wood-pile, corn-crib, stacks, etc.; that the right of way at the crossing is about eighty feet wide, with a wire fence on both sides; that the highway is about fifty feet wide, with a board fence on the northeasterly side,. Avith cattle-guards on each side of the crossing, and a plank crossing twenty-eight feet wide about midway between the two cattle-guards; that the regular leaving times for the passenger train in question were: Erom Milwaukee, 11:15 a. M.; from Ixonia (sis miles east of this crossing), 12:46 p. m. ; and from "Watertown, 1:02 p. M.; — and that the plaintiff was at the time weE acquainted with the time when the train usuaEy passed. There is testimony on the part of the plaintiff to the ef-feet that on the day in question the plaintiff started from his home on said highway, four and one half miles east of this crossing, about 12:30 p. m. ; that upon reaching the top of Koch’s hiE, so caEed, about one hundred rods east of the crossing, the railway track to the east could be seen for more than a mile; that he there looked. carefuEy for approaching trains, but observed none; that, from that point up to the defendant’s right of way, no view whatever of the track coidd- be seen; that he drove slowly down the hiE; that upon reaching the foot, and perhaps twenty or thirty rods distant from the crossing, his horses struck into a moderató trot, and continued in that way until weE upon the defendant’s right of way; that while coming down the hiE, and from about the middle thereof until so reaching the right of way, he listened carefuEy but neither heard nor saw anything to indicate an approaching train; that after he left the stony portion of the hiE the road was very dusty, and the wagon made but little noise; that immediately upon going onto the right of way, and somewhere between fifty and sixty feet from the crossing, he turned partially in his seat and looked east and listened for approaching trains, and continued to do so until his horses slowed down to a walk, but saw no train, nor sign of any train, approaching; that from that point the plaintiff could have seen the train, had it then been anywhere within at least 900 feet east of the crossing; that thereupon his horses took perhaps a few steps forward, but he could not say how many; when suddenly the near horse began dancing and jumping forward, and the off horse struck into a trot; that thereupon he drew up the reins, and took them weE in band,— drew them up firmly, but did not try to stop tbe borses; that wben bis borses began to dance, jump, and trot as stated, be turned from looking up tbe track to see wbat bad started them; that be first looked over bis borses, to see if anything was tbe matter witb tbe harness, but saw nothing; that be then looked in tbe direction of tbe city to tbe left,— to tbe west, — To see if any train was approaching from that direction, but saw nothing; that be then turned to look to tbe right-hand side, to see if anything or anybody bad made any motion to start bis borses up, but saw nothing; that then, fearing that perhaps some one bad driven up behind him, and was attempting to drive past him on the right-hand side, be turned, and, as be brought bis eyes back to tbe crossing be noticed that tbe forward feet of both bis borses were very nearly in tbe center of tbe track; that be then looked eastward to see who bad driven up to pass by him, and^saw tbe engine coming down behind him, and, as be judged, 150 to 115 or 200 feet distant; that upon seeing tbe engine be pulled witb all bis strength upon tbe left rein to bring tbe borses off tbe track, knowing, if they made any progress forward, it was certain death to himself; that bis eyes lingered just an instant on tbe engine; that be was horror-stricken to see it coming upon him; that he then turned to see if there was any possibibty of saving himself ; that be ^aw tbe near horse was entirely off tbe track, and tbe off horse bad bis forward feet only inside tbe rail about twelve to sixteen inches; that, while tbe off horse was in tbe act of turning away to avoid tbe engine, be saw tbe cow-catcher ploiv under bis feet, and tbe forward part of tbe engine strike him; that be was himself then so near that, if be bad bad bis right arm extended, be might have touched tbe driving wheel as it shot by him; that be shut bis eyes, thinking be should be crushed under tbe wheels of tbe cars, and that that was tbe last be knew for hours afterwards; that from tbe time be got there, upon tbe right of way, and until be looked around and saw the cars as stated, be beard no ringing nor whistling on the part of the train, and is positive that no signal was given, and that be beard no sound of any train; that the day was very quiet and warm; that a gentle breeze was blowing from the northwest; that be bstened all the time —• at least after be got within forty rods of the crossing, but beard nothing; that it was about 1:20 p. M. when the accident occurred; that the train got to "Watertown depot at about 1:25 p. M.; that the train at the time was running very fast,— fifty or sixty miles an hour. Eor the injury sustained by the plaintiff in bis person, and to the horses, harness, and wagon, be brings this action. At the close of the trial the jury returned a verdict in favor of the plaintiff of $7,500, and from the judgment entered .thereon the defendant appeals. contended, inter alia, that under the testimony as to the speed of the team and of the train, and as to the view of the track, the train must have been in plain sight when the plaintiff was sixty feet, from the crossing, and if be looked at that point be. must either have seen it or looked so negligently and carelessly as not to see it. The testimony of the plaintiff that be looked and saw no train does not make a conflict of testimony sufficient to go to the jury. Arts v. G., B. I & F. B. Go. 34 Iowa, 153, 159; Bloomfield v. B. & W. B. Go. 74 id. 607; Garroll v. F. B. Go. 12 "Weekly Notes (Pa.), 348; Bence v. G., B. I <& P. B. Go. 63 Iowa, 746, 752-3; Perm. B. Go. v. Bell, 122 Pa. St. 58; Mcvrla/nd v. P. c& L. F. B. Go. 123 id. 487; Penn. B. Go. v. Mooney, 126 id. 244; Cleveland, O., O. & I. B. Go. v. Elliott, 28 Ohio St. 340. "Where the evidence shows that a view of the track can be bad at any particular distance from the crossing, the presumption of law is either that the traveler looked and saw the train or that be did not look; and in either case he is negligent. Shearm. & Redf. Neg. (4th ed.), sec. 416; Gones <o. G., I, St. L. dk G. B. Go. 114 Ind. 328; Chicago do E. 1. B. Go. v. Hedges, 118 id. 5; Wilcox v. B., W. dk O. B. Go. 39 N. Y. 358, 361; Tol/mcm v. S., JB. dk N. 7. B. Go. 98 id. 198, 204; Brown v. M. do St. P. B. Go. 22 Minn. 165, 161; lesa/n v. M. O. B. Go. 71 Me. 85. If the plaintiff looked at a place 'where, by reason of obstructions, an extended view of the track could not be had, and faffed to look after coming to a place where the view was clear, such conduct is negligence which defeats a recovery. Weyl v. G., M. do St. P. B. Go. 40 Minn. 350; Atchison, T. dk S. F. B. Go. v. Townsend, 39 Kan. 115; HaAnes v. I. G. B. Go. 41 Iowa, 227; Salter v. V. dk B. B. B. Go. 75 N. Y. 273,278-9; Fletcher v. Fitchburg B. Go. 149 Mass. 127; Marty v. G., St. P., M. de O. B. Go. 38 Minn. 108; Freemcm v. B., S. S. dk A. B. Go. 74 Mich. 86; Winstanley v. O., M. do St. P. B. Go. 72 Wis. 375, 383; Oullen v. D. dk H. O. Go. 113 N. Y. 667. The plaintiff was negligent in driving rapidly upon the track without pausing or slackening his pace to look and listen for approaching trains. Seefeld v. G., M. dk Si. P. B. Go. 70 Wis. 216; Salter v. Z7. do B. B. B. Go. 75 N. Y. 273;. Weyl v. G, M. d St. P. B. Go. 40 Minn. 350, 353; Gones v. G, I., St. L. dk G. B. Co. 114 Ind. 328; Oon-nelly v. H. 7. O. do H. B. B. Go. 88 N. Y. 346; Schaefert v. G., M. do St. P. B. Go. 62 Iowa, 624; Haas v. G. B. do I. B. Go. 47 Mich. 401; Griffin v. G., B. I. dk P. B. Go. 68 Iowa, 638; Mantel r. G., M. do St. P. B. Go. 33 Minn. 62; Powell v. H. 7. O. do H. B. B. Go. 109 N. Y. 613. Those in charge of the train, after discovering the plaintiff on the highway, had the right to assume that he would not attempt to cross without looking or listening for trains, and that he would stop before crossing the track if a train was approaching. 7ancey v. W., St. L. dk P. B. Go. 93 Mo. 433; Moody v. P. B. Go. 68 Mo. 470, 473-4; Dyson v. H. T. ds 3SÍ. E. B. Go. 57 Conn. 9; Warner v. H. Y. O. B. Go. 44 N. Y. 465, 469; Vabash, St. L. & B. B. Go. v. Borough, 18 Bradw. (HI.), 431; Chicago, B. da Q. B. Go. v. Hamerell, 81 Ill. 450, 453. Negligence on the part of a railroad company in failing to give signals, or in running at a prohibited rate of speed, -will not excuse a traveler from looking and listening, and he is not entitled to assume that the persons in charge of the train will observe all proper precautions on their part. Abbot v. BwimneTl, 14 Win. 525, 526; Kelley v. JET. ds St. J. B. Go. 75 Mo. 138; Bañl/road Go. v. Houston, 9.5 U. S. 69J; 1 Thornp. Neg. 426; Galligcm v. H. Y. G. ds H. B. B. Go. 59 N. Y. 651; Scho-field v. G., M. ds St. B. B. Go. 114 U. S. 615; Gorton v. E. B. Go. 45 N. Y. 660, 664; Hamms v. E. B. Go. 41 id. 296, 299; Ormsbee v. B. ds B. B. Gorges. 14 R. I. 102; Wabash, St. L. ds B. B. Go. v. Wallace, 110 Ill. 114; Ernst v. H. B. B. Go. 39 N. Y. 61, 68; Harlem v. St. L., H. G. ds H. B. Go. 64 Mo. 480; Union Bacific B. Go. v. Adams, 33 Kan. 421; State v. If. O. B. Go. 7Q Me. 351; Heamney v. G., M. ds St. B. B. Go. 47 Wis. 144; Schillmg v. G, M. ds St. B. B. Go. 71 id. 255; Williams v. G., M. ds St. B. B. Go. 64 id. 1.