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

Winslow, J.

The circuit judge, in his charge to the jury, gave them the following instruction: “ Generally, it is the duty of any man who is crossing a railroad trank to look and listen carefully for approaching trains, and to keep off the track if there is any appearance of danger in crossing. On the other hand, it is the right and duty of every man who comes into a dangerous place of any kind to exercise his own best judgment as to what he shall do. It is for him to determine for himself whether or not a train is so distant that it is perfectly safe to cross the track in advance of it, or whether it is so near as to make it *288 dangerous to attempt to cross the track in advance. It is for him, when he finds himself upon a track where there is an approaching train bearing down upon him, to determine for himself whether it would be safest for him to go forward or to go back; and if he exercises his judgment to the best of his ability he is not chargeable with negligence if it afterwards turns out that his judgment was wrong. If it afterwards turns out that he might have escaped by going back when he went forward, or that he might have escaped by going forward when he went back, if he acted upon his best judgment under the circumstances, that is all that is required of him; and his mistake, if he commits a mistake under such circumstances, is not to be imputed to him as negligence.” The obvious effect of the instruction is to inform the jury that when a person approaches a railway track, and sees a train coming, he may attempt to cross in advance of it or not, just as he pleases, and he is not chargeable with negligence, however rash his act, because he has acted on his judgment. This was error. The rule that "a person suddenly put in a position of great peril by the negligence of another, is not responsible for an unwise choice of a mode of escapeáis manifestly not applicable to the case of a traveler approaching a railroad track where he knows trains are frequent, and where his view is unobstructed. He is bound to the exercise of ordinary care, and if he fails in this, and is injured in consequence thereof, he cannot recover. Although this rule was practically stated to the jury in another part of the charge, it seems plain that the instruction first herein quoted would thoroughly destroy its force.

The court also charged that the damages would be what the intestate’s life would have been worth, had he lived, to his widow and ohildi'en. This was incorrect. It is the pecuniary loss of the widow alone which is recoverable. Abbot v. McCadden, 81 Wis. 563 . Other questions are presented, *289 but as there must be a reversal, and the testimony upon another trial may present other or different facts, they are not passed upon.

By the Court.— Judgment reversed, and cause remanded for a new trial.