Opinion
September 11, 1947. —
October 14, 1947.
APPEAL from a judgment of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Reversed.
For the appellant there was a brief by North, Bie, Welsh, Trowbridge Wilmer of Green Bay, and oral argument by Walter T. Bie.
George E. Bills and Robert P. Stebbins, both of Green Bay, for the respondent.
Action commenced February 8, 1945, by Elsie Hynek and Frank Hynek, her husband, to recover damages sustained by each of them in a collision with a train of the Kewaunee, Green Bay Western Railway Company. Defendant appeals from that part of the judgment, entered April 15, 1947, which awards the plaintiff Elsie Hynek $4,453.79.
The evidence shows that plaintiff Elsie Hynek and her husband were driving south on St. George street in the city of Green Bay at about 7 o'clock in the evening of February 22, 1944. It was dark and snowing. St. George street intersects at right angles the railroad tracks of the Kewaunee, Green Bay Western Railway Company. St. George street is level for several blocks north and south of the tracks, but at the railroad crossing there is a rise or hump of about two feet.
The Hyneks were familiar with the crossing, having traveled on St. George street often. As they approached the crossing on the night of the accident, Mr. Hynek was driving at a speed of about fifteen to twenty miles per hour. When they saw the rise in the roadway from an estimated thirty-five feet away, which rise they recognized as marking the location of the tracks, Mr. Hynek reduced his speed to seven or eight miles per hour. Both Mr. and Mrs. Hynek testified that they looked and saw no train. Neither did they hear one, so Mr. Hynek increased his speed to cross the tracks.
The car was struck on its right side by the locomotive of a freight train belonging to the appellant. The train was traveling east at a speed of about fifteen miles per hour, so the Hynek car was on the left, the fireman's side of the train. The headlight of the train, located about ten feet above the rails, normally threw a beam of light about seven hundred feet down the track, but this night, because of the snow, it threw a beam of light between three hundred and five hundred feet. The fireman was watching the roadbed ahead and did not see the Hynek car until he was aware of its headlights twenty-five to thirty feet from the track. He immediately called for an emergency stop. The train traveled about three hundred thirty-nine feet before it could be brought to a full stop, and it struck the Hynek car, pushing it down the track.
The jury found that the defendant was negligent as to lookout, that plaintiff's host was negligent as to lookout, and that the defendant's negligence amounted to twenty-seven and one-half per cent and the host's to seventy-two and one-half per cent of the whole. Judgment was entered in favor of the plaintiff Elsie Hynek in the sum of $4,453.79, damages and costs.
There is no evidence to sustain a finding that any member of the engine crew failed to exercise ordinary care in approaching the crossing where the collision with the automobile occurred. Under the facts proved beyond dispute there was no act or omission constituting negligence on the part of the fireman in the performance of his duties.
The trial court instructed the jury that railway employees in charge of a locomotive are required to exercise ordinary care to keep a proper lookout as to the track and intersecting streets and highways and to observe the streets and highways adjacent to the tracks sufficiently to enable them to ascertain whether persons or vehicles are in dangerous proximity to the track, and if such persons or vehicles are in danger of being struck, the railway employees must do what ordinarily careful and prudent employees would do under like or similar circumstances to avoid doing injury to any such person or vehicle.
That instruction is not subject to the objections raised by the appellant, but properly interpreted it does not warrant the implication that the fireman was bound to be watching St. George street at any particular instant. The engine crew's duty to maintain a lookout is limited to the track and streets and highways adjacent to the track. The impossible is not required. This duty of the engine crew to maintain a proper lookout must be considered in the light of established legal principles recently reiterated in Keegan v. Chicago, M., St. P. P. R. Co. (1947) 251 Wis. 7, 27 N.W.2d 739. There the court held, as it has in other cases ( De Wildt v. Thomson (1942), 241 Wis. 352, 358, 6 N.W.2d 173; Roswell v. Chicago, M., St. P. P. R. Co. (1942) 240 Wis. 507, 514, 2 N.W.2d 215; Dretzka v. Chicago N.W. R. Co. (1934) 216 Wis. 111, 116, 256 N.W. 703), that a motorist approaching a railroad crossing has a duty to look and listen for an approaching train before attempting to cross the tracks. The operators of a locomotive have the right to assume that the driver of an automobile traveling at a comparatively slow rate of speed toward a grade crossing will stop his car in a place of safety. In view of these principles of law and the facts of this case it is impossible to sustain the jury's finding of negligence on the part of the fireman.
In the brief of the respondent and upon the argument, frequent reference was made to atmospheric conditions existing at the time. It was snowing and visibility was poor, but that condition was general and put no more burden upon the engine crew than it did upon the occupants of the automobile. The train was moving well within the legal speed. The engine bell was ringing. The headlight was sending its beam ahead of the train and lighted up the track for upwards of three hundred feet. The fireman was maintaining a lookout over the track ahead. The railroad crossing at St. George street was clearly visible to those traveling on St. George street. The record contains exhibits which show that from a point one hundred feet north of the tracks on St. George street one could see objects one hundred feet west on the track. As soon as the fireman did see the car, he did all that a careful and prudent employee with his duty would do. He immediately gave the signal for an emergency stop, and the proper action was taken by the engineer.
Even if the fireman had seen, or in the exercise of due care ought to have seen the Hynek car sooner, the evidence discloses no facts that would create a legal duty in him to do any more than he did. There was nothing at the crossing to obstruct the automobile driver's view of the tracks. The Hynek car at all times was moving at a rate of speed which would enable the driver to stop at a point where he would be free from danger. If the fireman had observed the approach of the car back of its twenty-five to thirty-foot position from the track, he would have seen nothing to indicate a probability that the car would proceed over the tracks while the train was moving. Indeed, the driver of the car testified that when he was about thirty to thirty-five feet from the track he reduced his speed to seven or eight miles per hour. This would indicate to anyone seeing him that he was preparing to stop to let the train go by. Instead, when he was an estimated twelve to fifteen feet away he accelerated his speed and the collision occurred.
When all of these facts are considered in connection with the rule that those in the engine of a train have the right to assume that a person approaching the track will reasonably exercise his senses of sight and hearing and act appropriately, it is evident that the engine crew of this particular train, prior to the time of applying the emergency brake, would have had no occasion to assume that danger of a collision was developing. Nothing calling for an effort to stop the train happened before the fireman called for the emergency stop.
Under the facts here established a ruling fixing responsibility for respondent's injuries upon the appellant cannot be sustained.
By the Court. — Judgment reversed. Cause remanded with directions to dismiss the complaint.