Dummer v. Milwaukee Electric Railway & Light Co.

Whatever difference of opinion there may be upon the subject as an original proposition, it is now firmly settled as a part of the law of this state that it is the duty of a person approaching the track of an electric street railway, whether he be -walking or riding in a vehicle, to look and listen for approaching cars; and that if he fails to do so, and is injured by a car while crossing the track, he is guilty of contributory negligence as matter of law. Cawley v. La Crosse City R. Co. 101 Wis. 145; Ryan v. La Crosse City R. Co., ante, p. 122; Wills v. Ashland L., P. & S. R. Co., ante, p. 255. This conclusion seems also to have the weight of judicial opinion in other states in its favor. Booth, St. Ry. Law, §§ 312, 315.

This legal proposition necessitates reversal of this case, because it was admitted upon the trial and found by the jury that neither the plaintiff nor the driver of the wagon looked eastward before they started to cross the defendant’s track. It is true that the jury found, in answer to questions 5 and 6 of the special verdict, that neither the plaintiff nor the driver was guilty of contributory negligence; but, the fact that they failed to look and listen having been admitted and previously found, contributory negligence was thereby established as matter of law, and the question was no longer open.

Furthermore, manifest error was. committed by the court in its charge with reference to the last-named question. The court charged, in substance, that, even if they did not look, still they were not guilty of contributory negligence if a *593person exercising ordinary care who had looked would have considered it safe to cross the track because the car was so far east; and, further, that if the plaintiff and the driver were placed in a situation of danger by defendant’s negligence, and were compelled to choose one of several lines of action in the presence of imminent danger, the fact that they did not choose the best means of escape does not charge them with negligence. Both of these propositions are erroneous ; the first, because it emasculates the rule requiring a person about to cross a railway track to look and listen, and the second because it is not applicable to a case where the plaintiff, by his own negligence, has placed himself in a position of danger.

As there was no motion by defendant in the trial court to strike out the fifth and sixth findings and for judgment upon the verdict, this court will not direct judgment but will order a new trial. Conroy v. C., St. P., M. & O. R. Co. 96 Wis. 243.

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