#### Schroeder, Respondent, vs. Wisconsin Central Railway Company, Appellant.

*February 5*

February *24, 1903.*

*Railroads: Injury at street crossing: Contributory negligence: Court and jury: Special verdict: Evidence: Immaterial errors: Unlawful speed: Statutes construed.*

1. Plaintiff was injured at a street crossing of defendant’s railway by cars which, had been standing on the track which he was crossing and were suddenly thrown back against him with great violence by a switch engine which at that moment, coming from a further track by a cross-over switch, struck the other end of the cars. He had looked when 150 feet from the track and had seen these cars, with no engine on the same track, and the switch engine on the further track. Again, when about eight feet from the track, he had stopped, looked in both directions, and listened, and then saw there was no engine on the track with the cars, and thought he heard the engine, then on the further track. Thenceforward the engine was out of his sight, behind the cars. Upon the evidence, showing these facts and others, it is *held*that plaintiff’s contributory negligence was not conclusively established.

2. Refusal to submit for special verdict the question whether plaintiff could have heard the engine coming if he had stopped and listened before reaching the track was proper, since such *34question presented no issue, but merely an evidentiary and inconclusive fact, fully included in tbe question whether plaintiff was guilty of contributory negligence.

3. Refusal to submit for special verdict tbe question wbetber plaintiff was guilty of a *“slight*want of ordinary care, which contributed to bis injury,” was not error, tbe question submitted being wbetber be was guilty of *any*want of ordinary care, etc.; and, there having been no specific request, failure to instruct tbe jury that a slight want of ordinary care would require an affirmative answer to tbe question submitted was not error, tbe jury being instructed, with some emphasis, that *any*want would constitute negligence and require such answer. *Jung v. Stevens Point,*74 Wis. 547, distinguished and limited.

4. Tbe admission of evidence that about an hour before tbe accident tbe fireman was running tbe engine without tbe engineer, was not a material error, it being obvious that it bad no effect upon any of tbe issues finally submitted.

6. Secs. 1809, 1809a, Stats. 1898, construed together, make it unlawful to run trains or engines faster than six miles an hour in cities and villages until after having passed all tbe traveled streets thereof, except that where gates are maintained as provided in sec. 1809a a speed of fifteen miles an hour is permitted. In tbe absence of proof that such gates are maintained tbe six-mile limitation will be presumed to be applicable.

6. In an action against a railway company for injuries received at a street crossing, where tbe complaint alleged negligence in running tbe engine at an “unlawful rate, to exceed six miles an hour,” and such statutory negligence was fully established by tbe proof, it was not error prejudicial to tbe defendant to submit to tbe jury tbe question wbetber tbe engine was run at “an unreasonable and dangerous speed.”

Appeal from a judgment of the circuit court for Wood county: Chas. M. Webb, Circuit Judge.

*Affirmed.*

Action for personal injuries suffered by plaintiff at the intersection of defendant’s north main track with Center avenue, in the city of Stevens Point, on Sunday, November 5, 1899. Evidence tended to show a situation, so far as it can he described in words, as follows:

Center avenue, which lies some 400 feet east of defendant’s station, is crossed by two main tracks running east and *35west, and fourteen feet apart between centers. West of Center avenue, these two main tracks constitute substantially all of defendant’s railroad material to tbe case, except for a cross-over switch between them, to be hereafter mentioned. Commencing in Center avenue, and thence toward the east, there diverge from these two main tracks, like the sticks of a fan, a series of switches or side tracks, which again repeatedly subdivide, constituting a yard covering many acres, and containing a large number of tracks, so that just at the crossing in question is what may be termed the “throat of the yard,” across which switch engines pass with great frequency in the process of moving about cars from one part of the yard to another, or in making up trains. About 140 feet west of the center of Center avenue, towards the station, is a crossover switch connecting the north with the south main track, thus enabling cars or engines to pass from one to the other; its junction with the south track being 268. feet west of the street center.

-On the day in question there were standing four box cars upon the north main track, the easterly end thereof extending a few feet onto a switch there diverging northward from said track. The east end of these cars was about the center of Center avenue. The west end was about 145 feet westward, and extending a few feet west of the point where the crossover switch commenced to diverge toward the south main track. The plaintiff, returning from church at about noon, went southward on the east side of Center avenue, intending to cross the tracks and go on further southward, to his residence. The four box cars above mentioned were so located that they obscured from a foot passenger the cross-over switch and any train which had entered thereon from the westward far enough to make its divergence from the south main track perceptible when such foot passenger was at any point nearer than about thirteen to fifteen feet north of the cars. As plaintiff went southward on Center avenue, and about 150 *36feet 'before reading the cars, he looked and observed them, and observed the situation about them; saw that there was no train or engine upon the north track to the westward of them, but did observe a switch engine with some cars moving about on the south main track. He passed on, with no very-definite further observation, though, of course, with his face directed toward the tracks, until he reached a point some fifteen to twenty feet north of the cars, just beyond which the sidewalk terminated, where he left the sidewalk, but passed on southward in the street toward the track. When about eight feet from the north rail of the track on which the cars stood, he stopped, looked in both directions, and listened. He could then see the north main track upon which the cars were situated, at least as far westward as the depot, about 400 feet away, and there was no engine or train there. He thinks he heard the puffing of an engine in that direction, but, if so, that engine was on the south main track, as he had already observed. Immediately south of the track on which the cars stood was the flagman, whose custom it was to make deterrent signals if there was danger in crossing. He made no signal, and plaintiff proceeded to cross the track about ten feet east of the east end of these cars, when, just as he was midway of the track, the flagman shouted to keep back, and at the same moment the cars were thrown against him with great violence, and he was thrown down and injured. The movement of the cars was occasioned by the fact that the switch engine which had previously been upon the south main track had at that moment passed therefrom up the cross-over switch and come in violent contact with these standing cars. It came at a speed of about twelve miles an hour, and with such violence as to throw the body of one of the cars off the trucks, and by its impact to drive these four cars a distance of some 140 feet. It also came without the ringing of the bell. At the time that plaintiff stepped off of the sidewalk into the street to go towards the crossing, as above stated, that switch engine, *37Raving one car in front and east of it, Rad just Racked up westward on tRe soutR track to a point beyond tRe junction of tRe cross-oVer switcR witR tRe soutR track, and migkt Rave Reen seen by plaintiff in tRat position. It eitRer was tRen standing still, or just commencing its movement eastward. In eitRer event, it could not Rave been perceived tRat it was turning onto >tRe switcR to cross from tRe soutR track to tRe one which plaintiff was about to cross; and it is practically establisRed by all evidence tRat, before tRat fact could Rave been perceptible, plaintiff must Rave passed onward so near to tRe standing cars tRat they obscured tRe approacRing engine from Ris sigRt.

TRe foregoing situation and narrative of events in many respects is uncontroverted, but in all respects Ras evidence at least tending to its support. TRe jury found by a special verdict of sixteen questions, tRat tRe defendant was chargeable with negligence of its employees in running tRe engine ■at an unreasonable and dangerous speed, and in failing to ring tRe bell, and in tRe flagman’s failure to give any warning to prevent plaintiff from attempting to cross; tRat sucR negligence was tRe proximate cause of tRe plaintiff’s injury; tRat plaintiff was not guilty of contributory negligence. Whereupon, after motions to change tRe answers to several of these questions and render judgment in favor of the defendant, the court entered judgment thereon in favor of the plaintiff for the amount of damages found, from which the defendant appeals.

Eor the appellant there was a brief by *Howard Morris*and *Thos. H. Gill,*and oral argument by *Mr. Gill.*

Eor the respondent there was a brief by *O’Connor, ITam-mel & Schmitz*and *Fred F. Groelle,*and oral argument by *Mr. Groelle*and *Mr. A. J. Schmitz.*

Dodge, J.

1. TRe most strenuous contention on appellant’s part is that contributory negligence appears as matter *38of law. Such contention has been the subject of consideration in a multitude of crossing cases in this court, and while recognizing that due care or negligence must he measured by the surrounding circumstances and is ordinarily to be deduced as a fact therefrom, many decisions have declared that, for the courts of this state, certain conduct is so clearly variant from due care that the law declares it negligence, and courts should so hold without submitting the question to uncertain arbitrament by the jury. It has been decided that in approaching a railway crossing one must use his senses of sight and hearing to ascertain whether there is any approaching train, of which peril the mere existence of the track is a continual warning; that the duty to look and listen exists at every opportunity to render it effective, but especially at the last opportunity before entering upon the peril; also that courts will not deem credible the testimony of a plaintiff that he did look and listen, but did not see or hear that'which the physical facts and circumstances demonstrate must have been apparent. A few of the decided cases are *Nolan v. M., L. S. & W. R. Co.*91 Wis. 16, 25, 64 N. W. 319; *White v. C. & N. W. R. Co.*102 Wis. 489, 493, 78 N. W. 585; *Koester v. C. & N. W. R. Co.*106 Wis. 460, 464, 82 N. W. 295; *Tesch v. M. E. R. & L. Co.*108 Wis. 593, 84 N. W. 823; *Guhl v. Whitcomb,*109 Wis. 69, 85 N. W. 142; *Steber v. C. & N. W. R. Co.*115 Wis. 200, 91 N. W. 654.

Applying such rules, is the plaintiff, beyond controversy, brought within their condemnation? It appears that he looked when 150 feet away, and again when eight feet, from the track. It does not appear very conclusively, either by testimony or verdict, that he did not continue some measure of observation between those points; but concede, *arguendo,*that he did not, such observation in this ease could not have disclosed to him any danger, nor helped to save him from the accident. . It would, at most, have confirmed, what he already knew — that an engine was in motion upon the south *39main track. It would not have disclosed anything in the movements of that engine to indicate probability of its being transposed onto the north track, even if he had known of the existence of the cross-over switch, which by no means conclusively appears. During all this time of approach, plaintiff could see, and, indeed, had previous knowledge, that when he got close to the crossing he would have the best and most extended view of the track on which these cars stood, both to east and west, and could then most effectively take those precautions, which ordinary care demanded, to ascertain whether engine or train was approaching. Certainly we cannot discover conduct, in the course of his approach toward the track, which is inconsistent with ordinary care. There is testimony that when he got close to the track (i. e., within seven or eight feet) he stopped and performed his duty to look and listen for the peril of which that track was a warning, namely, an engine moving thereon. Having a view of several hundred feet, and having assured himself of the absence of any such peril, he proceeded to cross. Where in all this is there lapse in any of the respects declared essentiál to ordinary care in any of the foregoing cases ? Had he relied on his observation while passing along the sidewall!;, and omitted to renew it when close to the track, he would have fallen within the criticism of *Nolan v. M., L. S. & W. R. Co., supra,*where one, after looking and seeing an engine was stationary, indulged in some conversation, and then stepped on the track without giving a final look, which would have disclosed the approach of the engine. Had there been anything to suggest to him the existence of the cross-over switch, and that the engine which he saw to be on the south track was likely to turn thereon and come to collision with the standing cars, it might have been his duty to stop far enough back to have an unobscured view of that curve, and to assure himself that the engine was so far away as to exclude all possible peril, but no such suggestion existed. It does not appear that he knew of the switch, *40nor that, when he passed the point where the standing cars intercepted, his view, the engine on the sonth track had commenced to swerve' northward. Had the engine been moved at only six miles an honr, it seems more than probable that such swerving would have been apparent long enough before the collision to have been seen by plaintiff before his line of vision was obscured by the standing cars. But in fact at no time when the engine was so on the switch was he in a position so that the most vigilant exercise of sight or hearing could discover it.

We have not dwelt on the presence and conduct of the flagman. The extent to which absence of customary signals of danger may justify any relaxation of vigilance which would be expected if no such warning were customary has received antithetic discussion in *Rohde v. C. & N.*W. *R. Co.*86 Wis. 309, 56 N. W. 872, and *White v. C. & N. W. R. Co.*102 Wis. 494, 78 N. W. 587. We need not enlarge upon that subject, as, independently of the flagman’s tacit invitation to cross, we are unable to say that plaintiff is conclusively shown to have omitted any of the possible efforts to have informed himself of the presence of the danger from which he suffered. The situation seems to fall within the principle of such cases as *Langhoff v. M. & P. du C. R. Co.*19 Wis. 489, and *Tesch v. M. E. R. & L. Co.*108 Wis. 593, 84 N. W. 823, to the effect that one who diligently uses all his senses, and assures himself of the absence of any peril discoverable thereby, is not necessarily negligent in crossing a railway track, although there may exist a hidden danger of which he has no knowledge and cannot by observation inform himself.

2. Error is assigned upon refusal of the court to submit, at request of the defendant, the question whether plaintiff was guilty of a “slight want of ordinary care, which contributed,” etc. The question submitted was whether he was guilty of *any*want of ordinary care, etc. The form adopted *41by the court was correct. It covered the whole field. If guilty of either a slight want of ordinary care, or more than a slight want, the question must be answered in the affirmative, while appellant’s question might, by a technical juryman, be answered negatively if he believed the omission more than slight. This subject has been fully ruled against appellant. *Mauch v.*Hartford, 112 Wis. 40, 57, 87 N. W. 816. In this connection it is also urged, however, that it was error not to explain to the jury that a slight want of ordinary care would warrant and require an affirmative answer to the‘question in fact submitted. What the court did was to instruct* with some emphasis, that *any*want would constitute negligence and require affirmation. It is undoubtedly established by numerous decisions of this court that, when properly requested, the attention of the jury should be challenged by direct use of the word “slight” in this connection, and we need neither repeat nor question the reasons which have induced the adoption of such rule. *Otis v. Janesville,*47 Wis. 422, 2 N. W. 783; *Hart v. Red Cedar,*63 Wis. 634, 642, 24 N. W. 410; *Jung v. Stevens Point,*74 Wis. 547, 43 N. W. 513; *Shaw v. Gilbert,*111 Wis. 165, 188, 86 N. W. 188. It is disappointing that such reiteration of a rule fails to secure response to it from the trial court, whose duty it is to correctly guide the jury by full instructions, whether expressly requested or not, without regard to whether reversal is to be apprehended in absence of such request. Appellant made no request for any instruction on the point, but now urges that the request for submission of a question embodying the word “slight” is tantamount to a request for an instruction making use of it, on authority of *Jung v. Stevens Point, supra.*That case does not go quite to the extent claimed. It decides that the word “negligence,” used in the special verdict in that case, is so ambiguous, — signifying, as it may, slight, ordinary, or gross negligence — that the court ought, of its own *42motion, to limit and define it, and that such duty was so imperative that a mere suggestion from counsel was enough to make its omission reversible error, even in absence of a formally requested instruction. In the present case there was no such complete omission of duty — merely a failure to inform the jury that the word “any” was used in sufficiently comprehensive sense to include “slight” want of ordinary care, which must be obvious to any one carefully observant of the language. No rule is better or longer established in courts of error than that, generally, mere omissions to give certain instructions to juries will not constitute ground for reversal unless definite request therefor is made. *Lachner v. Salomon,*9 Wis. 129, 134; *Karber v. Nellis,*22 Wis. 215, 219; *Weisenberg v. Appleton,*26 Wis. 56, 60; *Austin v. Moe,*68 Wis. 458, 32 N. W. 760; *National Bank v. Illinois & W. L. Co.*101 Wis. 247, 258, 77 N. W. 185; *Hacker v. Heiney,*111 Wis. 313, 316, 87 N. W. 249 ; *New Home S. M. Co. v. Simon,*113 Wis. 267, 271, 89 N. W. 144. That rule is recognized, and the method of making the request defined, by statute in Wisconsin (sec. 2853, Stats. 1898), which, as construed, requires counsel to formulate in writing the exact words of the instruction he desires given. *Lyle v. McCormick H. M. Co.*108 Wis. 82, 91, 84 N. W. 18, 51 L. R. A. 906; *Hacker v. Heiney,*111 Wis. 313, 316, 87 N. W. 249. To that rule, except as stated in *Jung v. Stevens Point, supra,*hardly any exception has been made, save where it is deemed that an element essential to the cause of action is left undisposed of by a special verdict because no direct question upon it is submitted, and because the jury are not so instructed that they must have disposed of it in answering some ambiguous or uncertain question in the verdict, so framed that the issue might or might not be included therein. In such case it has been held sufficient for counsel to request that the issue be submitted, and error has been held well assigned, not because *43the court failed to instruct, but because it failed to submit tbe issue, either by a direct question or by explicitly defining tbe ambiguous ones so as to include it. *Hennesey v. C. & N. W. R. Co.*99 Wis. 109, 74 N. W. 554; *Dugal v. Chippewa*Falls, 101 Wis. 533, 77 N. W. 878; *Crouse v. C. & N. W. R. Co.*104 Wis. 473, 480, 80 N. W. 752. Tbe case of *Jung v. Stevens*Point, 74 Wis. 547, 43 E. W. 513, goes somewhat beyond this principle, and further than any other in this court toward relaxation of the very ancient and salutary general rule above stated. In that respect it is an extreme case, and we are not willing to extend its authority beyond the situation there presented. We are not willing to hold it error that the court omitted to instruct the jury that “any want of ordinary care” includes a slight want thereof, in the absence of a specific request.

3. Appellant presents as error the fact that the court submitted to the jury, both by question and instruction, to find whether defendant ran its engine at “an unreasonable and dangerous speed,” while the complaint only alleged negligence in running “at a high and unlawful rate, to exceed six miles an hour.” He contends that this did not charge a speed negligent in itself, but merely one negligent because forbidden by statute, and so not negligence, within the case made by the pleadings. This construction of the complaint is very technical and narrow. We should hesitate to hold that it does not fairly notify defendant of the claim that the speed was negligently high, giving the pleading the liberal construction commanded by statute. It has been said that a negligent speed is unlawful speed, independently of statutory prohibition. Wi*ckham v. C. & N. W. R. Co.*95 Wis. 23, 26, 69 N. W. 982. Waiving such considerations, however, of course the error is immaterial if twelve miles per hour is expressly prohibited, for the jury have found upon abundant, if not un-controverted, evidence that such was the speed. The statutes *44on the subject are as follows: Sec. 1809, Stats. 1898, provides :

> “In all cities and villages ... no train or locomotive shall go faster, until after having passed all the traveled streets thereof, than at the rate of six miles per hour.”

Stevens Point was a city. Center avenue was a traveled street thereof, and had not been passed, by the engine. The' apparently inevitable conclusion is, however, sought to be avoided by reference to sec. 1809a, Stats. 1898, which provides :

> “Any railroad corporation operating a railroad in this state and whose line of road extends through cities and villages shall not run its trains or locomotives faster than fifteen miles an hour until after having passed all the traveled streets thereof, and shall cause the engine bell to be rung before and while crossing any such streets: provided however, that gates shall first be placed and maintained upon such street crossings within cities and incorporated villages over which trains shall pass as the public authorities of any such city or village may direct.”

These two sections are found together in the Revision of 1898, and it must be presumed that the legislature intended that both should have some effect. It could hardly be thought that the prohibition in sec. 1809 against exceeding six miles was intended to be wholly wiped out of existence by a mere prohibition against exceeding fifteen miles, contained in sec. 1809a. Nor can we consider any such absurd construction as possibly the mere words of the latter section suggest — as that the *limitation*of speed is to apply only where gates are put in, while it may be unlimited in absence of gates. Quite clearly, the two sections were intended to be read together; the latter qualifying the former. So considered, they are intelligible and reasonable. The first prescribes a general limitation of speed in cities and villages to six miles per hour. The latter makes exception where the railroad has put in gates in compliance with directions from the city, in which case fif*45teen miles per bonr shall be the limit. Such being the force of the statute, the situation in which the higher speed may be maintained is an exception to the general rule, and the burden rests on him who claims the exception to prove the facts warranting it. The record is barren of any evidence tending to show that the defendant has placed any gates at street crossings in Stevens Point. TJntil that fact is shown, it must be presumed to be governed by the six-mile limitation prescribed by sec. 1809. Hence, upon the record before us, the fact of statutory negligence is fully established, and the further finding that the speed was unreasonable and dangerous is, at worst, mere surplusage and not prejudicial error.

The court refused to submit, at defendant’s request, the question whether plaintiff could have heard the engine coming east from the switch, had he stopped and listened before reaching the track. This question, like some similar ones in fact submitted, presented no issue — merely an evidentiary and inconclusive fact, hardly disputed, fully included in the inquiry whether he was guilty of contributory negligence, and which the court might, without error, refuse, in the exercise of its discretion over the form of the verdict. Another sufficient reason for its refusal is that the fact, if found, would be inconclusive, if not immaterial. That he could hear an engine which he had seen and knew to be on the south track would hardly deter the ordinarily careful man from crossing the north track, when he could and did see that was clear for 400 feet or more. It would, at most, suggest the precaution of further observation after he had passed the standing cars, and before attempting to cross the south track.

Error is assigned on allowing a witness testifying to his observation of the vicinity about an hour before the accident to testify that the fireman was running the switch engine without the engineer. It is obvious from the instructions and the special verdict that this fact had no effect upon any of the issues finally submitted to the jury, and could not have *46been prejudicial, whether admissible or not, when offered in evidence.

The foregoing discussion sufficiently covers all the assignments of error on which appellant seems to rely. We find nothing which can warrant us in reversing the judgment.

*By the Oourt.*— Judgment affirmed.