#### Tunnison, Appellant, vs. Chicago, Milwaukee & St. Paul Railway Company, Respondent.

*September 17*

October *8, 1912.*

*Railroads: Injury to person walking on track: Contributory negligence.*

A deaf mute who, while walking on a railroad track in the nighttime, was struck and injured by an engine coming from behind, which could have been seen while 800 feet away, is *held*upon the evidence to have been guilty of contributory negligence as a matter of law.

Appeal from a judgment of tbe circuit court for Nock county: Geobge Gbimm, Circuit Judge.

*Affirmed.*

This action was to recover for the alleged negligent injuring of plaintiff. He and a companion, the former being a deaf mute and the latter practically so, while walking westerly on defendant’s main track, about 8 o’clock on the 6th day of March, 1912, were struck by an engine from behind, with the result complained of. A verdict was directed for defendant upon the theory that the plaintiff had no license to walk on the track, nor right to do so, and was guilty of contributory negligence. Judgment was rendered accordingly.

These were the facts: The railroad ran easterly and westerly, in the city of Janesville, Wisconsin, crossing Centre avenue on the east and Cherry street on the west, the distance between the two streets being about 1,284 feet. The place was in the outskirts of the city, considerable distance from any depot and outside the railroad yard limits, though there was a switch and sidetrack used for some special purpose. There were cattle-guards and the customary wing fence at both crossings and a notice near the track at Centre avenue and one near the switch track warning people to keep off the track; but no other prohibitory indications. Sec. 1811, Stats. (1898), prohibits a person from walking upon a railroad track *497as tbe plaintiff did. Nevertheless tbe people customarily used tbe track in going from either'street to tbe other. Tbe two persons entered thereon easterly of tbe westerly side of Cherry street, crossing tbe cattle-guard at that point in doing so. They were'on their way to a point beyond Centre avenue in tbe city of Janesville. It was nighttime; but not so dark, under tbe conditions existing, but that a train coming from tbe east could have been seen while some 800 .feet away. There was snow on tbe ground and it was not cloudy. There was no regular headlight on tbe engine. Tbe one in place when tbe trip was entered upon was, thereafter, accidentally put out of commission and there was no opportunity before tbe accident to supply its place,- though a lantern was substituted, which did some service, and there were two small lights, one on each side of the front of the engine, called blizzard lights, in the whole, rendering the engine plainly visible to the east of the place of accident for several hundred feet.

The eyesight of both parties was good.' The plaintiff’s companion could hear slightly; but not dependably, as he must have known. He could not hear at all, as he must have known. There was evidence of looking back, but no satisfactory evidence that there was such looking while the train was passing over the 800 feet east of the point of accident. In the meantime the parties must have traveled some 150 feet. As the train approached and before the engineer saw them, the bell was being rung. They were observed when some 300 feet away and special signals given to warn them. Particular exertion was not used to check or stop the engine, the engineer supposing the parties would make timely movement out of danger. Upon observing they were oblivious of their peril, notwithstanding all the warnings, he did all in his judgment he could to stop his train. The appliances therefor were in order and worked properly; but the distance was not sufficient to enable the engineer to avoid colliding with the travelers. The cowcatcher threw them on opposite sides, in*498juring tbe plaintiff. He saw tbe train just before tbe collision. There was ample opportunity for tbe plaintiff and bis companion to reach their destination without using defendant’s track. They chose tbe dangerous way for convenience or pleasure. They were adults. They were traveling pretty fast because it was cold. Tbe plaintiff’s companion bad her band in her muff and be bad bold of her arm. They were on their way to visit her aunt.

*Scurry M. Silber,*for tbe appellant.

For tbe respondent there was a brief by *G. S. Van Alstine, S. J. Killilea,*and *Thos. S. Nolcm,*and oral argument by *Mr. Vam, Alstine*and *Mr. Nolan.*

Maeshalx, J.

Irrespective of whether, in face of tbe statute prohibiting persons from walking on railroad tracks, as was done in this case, a person could be a licensee, it seems the plaintiff was guilty of contributory negligence. Tbe facts as they appear in tbe statement speak for themselves. Tbe rule applicable to such situations has been so often declared and is so familiarly elementary, that it is needless to restate, much less to cite authority in support thereof. It seems best to rest tbe case with tbe statement of facts, this brief reference to tbe legal effect, and tbe conclusion reached that, it is considered tbe judgment should be affirmed.

*By the Court.*— Tbe judgment is affirmed.