#### Hains, Administrator, Respondent, vs. Johnson, Receiver, Appellant.

*October 10*

October 28, *1913.*

*Railroads: Killing of traveler at highway crossing: Omission of customary signals: Contributory negligence: Failure to loolc.*

1. The omission of the customary signals of an approaching ear will not alone excuse a traveler upon the highway from the duty to approach a railway, crossing carefully and to look with such care as to see what can he plainly seen.

2. Plaintiff’s intestate, while riding in a buggy, was killed at a highway crossing in a collision with a south-hound car upon a double-tracked interurban electric railway. It appearing that after the vehicle going west had reached a point forty-one feet from the tracks the view was unobstructed, and that if the driver had looked carefully to the north he would have seen the car in time to avoid the collision, it is *held*that the failure so to look was a want of ¡ordinary care, imputable to the deceased and precluding a recovery, although it was necessary for'the driver to look to the south also and although the warning bell at the crossing was not ringing and he knew that a car from the north had passed but a short time before.

Appeal from a judgment of tbe circuit court for Kenosha county: E. B. BeldeN, Circuit Judge.

*Reversed.*

*649Eor the appellant there was a brief by *Fisher & Fisher,*attorneys, and *Bull &*Johnson, of counsel, and oral argument by *Peter Fisher.*

Eor the respondent the cause was submitted on the brief of *Robert Verne Baker.*

Timliw, J.

The appellant is operating as receiver the interurban railway of the Chicago & Milwaukee Electric Railroad Company, and the plaintiff’s decedent, Mrs. Mary Yurik, while riding with two others was killed in a collision at a highway crossing of said railway on July 14, 1912. The jury found by special verdict that the appellant was negligent in the operation of the car which collided with the vehicle in question and this negligence caused the death of Mrs. Yurik. This vehicle was what is known as a top buggy without side curtains. It was drawn by a quiet, manageable horse, and it was occupied at the time of the accident by the deceased and another lady sitting in the single seat, with a driver, one Alexander Mikulick, sitting on their knees. The right of way at the crossing is 100 feet wide; the street is sixty-four feet wide. The highway runs east and west, the railway north and south, and there are two railway tracks, one to the west for southbound cars and one to the east for north-bound cars. Erom the east line of the right-of way to the nearest rail on the east or north-bound track is forty-one feet, and this distance plus the width of the east track plus the distance between the tracks brings the traveler to the place of the collision. Mi-kuliek was driving west on this street. There is evidence from which the jury might infer that when one is approaching this crossing from the east his view to the north is obstructed until he enters upon the right of way. But from thence his view is clear and unobstructed. Approaching the right of way his view to the south is also somewhat similarly obstructed. This is no doubt a dangerous grade crossing con*650sidering tbe speed witb wbicli the interurian cars are operated. No question is made but that the contributory negligence of Mikulick, if any, is imputable to deceased. Mikulick testified that while approaching the right of way he saw a south-bound car cross the street and that an electric bell which usually rang when cars were coming near the crossing was not ringing at the time in question. While on the right of way and approaching the track he first looked to the north along the track and then to the south and did not see anything, and drove along until the instant before the collision, when he saw the car for the first time/ He was going on “a kind of a small trot.”

Numerous precedents in this state establish a rule of diligence to be observed by travelers on a highway approaching a grade crossing of a railroad. There are here no disputed facts relative to the care exercised by Mikulick. The rules of duty imposed upon travelers approaching a grade crossing with the cases upon which they are founded are collected in *White v. M., St. P. & S. S. M. R. Co.*147 Wis. 141, 133 N. W. 148.

Under the rule of *Rohde v. C. & N. W. R. Co.*86 Wis. 309, 56 N. W. 872, it might be said that the silent bell was an assurance that there was no danger and an invitation to cross in safety. But in *White v. C. & N. W. R. Co.*102 Wis. 489, 78 N. W. 585, Baedeen, J., commenting on the former case, said:

> “Suppose, while in a place of safety, plaintiff in that case had seen, or could have seen by the use of ordinary care, that the train was approaching, would any one claim that he might nevertheless continue his way and drive into danger ?”

It may be noticed that this is not the precise question presented here. The question here, rather, is whether within the rules of diligence, or rather the rules defining ordinary care under-similar circumstances, the driver might, by reason of the silence of the bell, the short distance, the necessity of *651looking south, and his knowledge that a car coming from the north had passed the crossing a short time before, be excused from failing to look north in time or to look with that care and diligence with which he otherwise should have looked.

In *White v. M., St. P. & S. S. M. R. Co.*147 Wis. 141 (133 N. W. 148), at page 150 it is said, discussing the question of contributory negligence:

> “Even such a persuasive circumstance as gates being raised where such exist and are customarily let down to bar the way to the track when a train is about to pass, has been held not to excuse a traveler on foot from using, efficiently, his own faculties to discern whether the track is clear before entering upon it,” citing the *White Case,*102 Wis. 489, 78 N. W. 585, and *Walters v.*C., *M. & St. P. R. Co.*104 Wis. 251, 80 N. W. 451.

The open gate is a more persuasive invitation than the silent bell. The distance was short and the plaintiff did look in each direction, but apparently his glance to the north was so hasty and slight as not to inform him of the approach of the car and he continued on a slow trot to the place of collision.

Personally I would have no hesitation, were this a new question, in deciding that under such circumstances the question of contributory negligence was for the jury. But this is not the unanimous view of the court. However, this case seems to be ruled by the later cases in this court against the plaintiff, on the ground that the omission of the customary signals of an approaching car will not alone excuse the traveler approaching the track from the duty to approach carefully and look with such care as to see what can be plainly seen. Had he looked carefully to the north he would have seen the car approaching. It follows that the judgment must be reversed, with directions to dismiss the complaint.

*By the Court.*— Judgment reversed, and the cause remanded with directions to dismiss the complaint.