#### Clemons, Administrator, Appellant, vs. Chicago, St. Paul, Minneapolis & Omaha Railway Company, Respondent.

December *it, 190S*—

January *5, 1909.*

*Railroads: Injuries at crossings: Duty of traveler: Diversion of attention: Looking and listening: Excuses: Appeal and error: Review: Findings, when disturbed: Contributory negligence: Statutes.*

1. Mere diversion of attention will not justify failure of a person about to cross a railroad track upon a highway to seasonably look and listen to discover presence in dangerous proximity of an approaching train. Failure to see such train and keep out of its pathway, when there is opportunity for doing so, is only excusable where attention is irresistibly forced to something else.

2. The conclusion of a trial court respecting sufficiency of evidence as to an issue of fact to require its solution by the jury should *388not he disturbed upon appeal unless it appears, clearly, that such conclusion was wrong, giving due weight to the superior advantages of the trial court for understanding the situation.

3. The presence of a railway track is such an admonition of probability of danger to one entering thereon that nothing short of physical impossibility will excuse neglect of a traveler to use his senses of sight and hearing to discover whether a train is. dangerously near or not before entering upon such track.

4. In case of a train being in sight and coming towards a highway crossing of a railway track, as a traveler approaches intending, to make the crossing, the duty to look and listen and keep out of the pathway of such train is not excused by any regulation as to the legal rate of speed of trains.

5. Assumption as to the speed of a moving train because of a legal regulation may be indulged in when the train is not in sight but not otherwise.

6. Where a person- approaching a highway crossing of a railway track has ample opportunity for seeing and keeping out of the pathway of a coming train by exercising the care required of him in respect thereto as matter of law, and nevertheless places-himself in such pathway and is killed, leaving no eye-witness of the circumstances thereof, such facts unexplained establish contributory negligence upon the doctrine of *res ipsa loquitur,*

7. Ch. 595, Laws of 1907, as to contributory negligence in certain cases, does not apply to any cause of action existing at the time of its enactment.

[Syllabus by Marshall, J.]

Appeal from a judgment of the circuit court for Eau Olaire county: Jaices O’Neill, Circuit Judge.

*Affirmed.*

Action to recover damages for death of the intestate,, claimed to have been caused by actionable negligence of defendant.

Plaintiff’s claim was that the deceased, a boy of fourteen years of age, while in the exercise of ordinary care, riding in .a cutter with his sister, a school teacher, whom he was taking to her school, the cutter being drawn by a single, gentle horse, journeying on the highway which crossed defendant’s track, was, as he entered upon the track, run into by one of defendant’s passenger trains, going at a great rate of speed and without giving any signal of its approach by the sounding of the engine bell or blowing of the engine whistle, whereby he was instantly killed. The answer put in issue all allegations as *389to defendant’s negligence and pleaded contributory negligence.

One of tbe principal controversies on tbe evidence was as to wbetber tbe deceased, as be approached tbe railroad crossing, bad ample opportunity to see or.bear, or both, tbe approaching train in time to stop bis horse and avoid colliding with tbe train. There was little or no controversy but that be bad such opportunity at least from tbe time be was within 100 feet of'tbe track and that he bad such opportunity there-nfter continuously until be was* at tbe point of danger, unless bis horse escaped from bis control after reaching a point ■sixty-six feet from tbe track.

Tbe jury rendered tbe following verdict:

“(1) Was the whistle blown eighty rods from tbe crossing where tbe collision occurred ? A. No.

“(2) At what rate of speed was tbe train moving as it approached and passed over tbe crossing where tbe collision •occurred? *A.*Forty miles per hour.

“(3) Was tbe horse running away beyond control from a point about sixty-six feet from tbe crossing until tbe collision occurred? *A.*No.

“(4) If you.answer tbe last question ‘Yes,’ then was tbe fact that tbe horse was so running away beyond control tbe ■proximate cause of the accident? *A.*No.

“(5) Was there failure to exercise ordinary care by tbe •defendant railroad company in tbe manner in which it managed and conducted tbe train respecting its speed and whistling as it approached and passed over tbe crossing where tbe •collision occurred ? *A.*Yes.

“(6) If you answer tbe last question ‘Yes,’ then was such failure to exercise ordinary care tbe proximate cause of tbe injury and death of Charles B. Clemons ? *A.*Yes.

“(7) Did any want of ordinary care on tbe part of Charles B. Clemons contribute to produce bis injury? *A.*No.

“(8) In case tbe court shall be of tbe opinion that plaintiff is entitled to recover, at what sum do you assess bis damages ? *A.*3,250 dollars.”

Tbe court on motion changed the answer to tbe first question from “No” to “Yes” and made a like change as to tbe *390seventh question, and rendered judgment in favor of the defendant. Exceptions were duly preserved for consideration in case of appeal, which was subsequently taken by the plaintiff.

TP. *H. Frawley*and *T. F.*Frawley, for the appellant.

Eor the respondent there was a brief by *James B. Sheean.*and *Bundy & Wilcox,*and oral argument by *B. P. Wilcox.*

Maeshall, J.

The first matter .presented is: Did the court err in changing the answer of the jury to the first question from the negative to the affirmative ? We pass that as immaterial' because of the conclusions reached respecting other questions.

The next in order is: Must the answer of the jury to the third question be understood as finding that the horse was-under control of the deceased while traveling the last sixty-six feet before reaching the point of collision, so that he might, have stopped and avoided the accident? That, it seems, must be answered in the affirmative. The evidence shows, there was a studied effort by appellant’s counsel to bring the-case within the rule of *Piper v. C., M. & St. P. R. Co. 77*Wis. 247, 46 N. W. 165, as explained and limited in *Guhl v. Whitcomb,*109 Wis. 69, 85 N. W. 142; *Hain, v. C., M. & St. P. R. Co.*135 Wis. 303, 116 N. W. 20; *Smith v. C., M. & St. P. R. Co.*137 Wis. 97, 118 N. W. 638, and similar-cases, that diversion of a driver’s attention will not justify failure to seasonably look and listen at a highway crossing of' a railroad track and to take notice of the dangerous proximity of a train if one is in plain sight or hearing and avoid getting-in its way, except where the attention is irresistibly forced to-something else so as to deprive such driver of opportunity to-do so. To do that evidence of a circumstantial character, there being no direct evidence obtainable, was presented to-maintain that during the sixty-six feet before reaching the crossing, not momentarily but substantially throughout, the deceased 'did not have reasonable opportunity for taking no*391tice of tb'e coming train. Tbe learned trial court brought to the attention of the jury all the evidence on the subject. Near and at the close of the instructions were the words:

> “Ton should not find that the horse was beyond control and unmanageable if it momentarily shied or jumped. The inquiry is whether the horse for substantially this whole space was in a condition of runaway beyond control.”

Facing that, as the jury must have done, there is no escaping the conclusion that they reached the decision that deceased during the space of four rods, the distance across a common highway, might have stopped, and would have done so and avoided the collision, had he tried. ■ We cannot do violence to the language of question and answer and come to a different conclusion, as the learned counsel for appellant would have us do. These distressing situations draw heavily upon human sympathy, but with a proper appreciation of judicial duty and with a proper measure of courage to perform it they will not incline the mind away from judgment based on reason. ..

So we pass to the next question, merely noting on the way manifest confirmation of the foregoing contained in the fourth finding, to the effect that the collision between .the horse and the railroad train is not. attributable to the horse being beyond the control of the driver.

Such next question is this: Did the court err in changing the negative answer as to whether the deceased was guilty of contributory negligence, to the affirmative ?

In considering such question, rightly, we must keep in view several firmly established legal principles. First in order is the one that a conclusion of a trial court, respecting sufficiency of evidence as to any fact in issue to present a jury question, should not be disturbed unless it appears from the record to be clearly wrong, giving due weight to the superior advantages which such court had for discovering the truth. *Powell v. Ashland I. & S. Co.*98 Wis. 35, 73 N. W. 573; *Bohn v.*Racine, 119 Wis. 341, 96 N. W. 813; *Lam Yee**392*v. State,*132 Wis. 527, 112 N. W. 425. That valuable principle in the administration of justice is tbe deciding factor in situations which are doubtful from an examination of the record. It must be always assumed the trial court paid careful heed to the trial from the beginning until the time of its judgment being invoked as to there being reasonable conflicting inferences from evidence; that he noted the deportment of witnesses and was appreciatively alert to appearances and incidents in the trial, not transferable to the written history thereof, but helpful in arriving at correct judgment. And further he assumed that in reaching the decision the elementary principle was in mind and given due weight, that unless- evidence as to an issue is so obviously one way as to leave no room for unbiased minds to reasonably reach a conclusion out of harmony therewith, it is for the jury. *Powell v. Ashland*I. *& S.*Co., *supra.*

Next in order is the principle that a railroad track is such an admonition of danger that he who approaches it at a highway crossing with knowledge thereof, intending to cross the same, must use his senses of sight and hearing to discover whether there is any reasonable probability of his placing himself in dangerous proximity to a moving train if he proceeds *;*that he.- is hot only bound to look and listen to discover whether a train is dangerously near or not, but is bound to make, the discovery of one if there be such plainly visible, or ■plainly within hearing, and to use his senses in that regard :at the last opportunity before going upon the track, and that mere diversion of attention will not excuse nonperformance of these duties.

The rule above stated has been laid, down concisely and in unmistakable language many times in recent years, as for instances:

In *Goldmann w. Milwaukee E. R. & L. Co.*123 Wis. 168, 101 N. W. 385:

> “Due care in approaching a railway track can be satisfied only by the full use of the senses of sight and hearing at the *393last moment of opportunity before passing the line between safety and peril”

In *Guhl v. Whitcomb,*109 Wis. 69, 75, 85 N. W. 142, 144:

> “All exception to the duty to look and listen at a railway •crossing resulting from a diversion of attention has been repudiated by this court except in cases where the attention is so irresistibly forced to something else as to deprive the traveler of the opportunity to perform that duty.”

: Again in the same case:

> “The known presence of a railway track is itself notice of the momentary peril of a passing train at all times, and the duty to look and listen is not relaxed by any opportunity for theorizing or difference of opinion as to whether a train is or is not likely to pass. Observation, not logic, is the proper precaution.”

And further in *Marshall v. G. B. & W. R. Co.*125 Wis. 96, 103 N. W. 250:

> “The presence of a railway track is such an- admonition of the probability of danger to one entering thereon, that nothing but physical impossibility will excuse his neglect to use his senses of sight and hearing to discover whether a train is dangerously near or not, before so doing. A person is not •only bound to look and listen for such a train before entering upon a railway track, but is bound 'to hear and see one, if there is such, and reasonable attention to the matter will enable him to do so, and if he attempts to cross the track in violation of such duty or in the face of danger after discovering it, he takes in his own hands the entire responsibility for what may follow as to injuries to himself, though produced in part by negligent conduct of the railway trainmen. One ■cannot reasonably expect the law to hold others responsible for his personal safety, as regards their mere negligence, if he sees fit to disregard such safety himself.”

Next in order is the rule that one in approaching a railway track is not excused from the duty to look and listen for a train and to regulate his course accordingly, because of any regulation as to the speed of trains, nor warranted in acting upon judgment as to the probability of time it will take such *394train to reach tbe crossing if it is not coming at an excessive-rate, in case of its being in sight, and if running at such rate-it is likely to reach the crossing before one could safely passover the same; that one must assume, as within probabilities, that a train may be running at greater than the legal rate. *Schneider v. C., M. & St. P. R. Co.*99 Wis. 378, 386, 75 N. W. 169; *Vant v. C. & N. W. R. Co.*101 Wis. 363, 368, 77 N. W. 713; *Goldmann v. Milwaukee E. R.*& *L. Co.*123 Wis. 168, 101 N. W. 384.

> “Assumptions as to the speed of moving trains in cities-may be indulged when they are not in sight, but cannot be relied upon by travelers who have a plain view of the coming-train.”

A further important principle is this: While contributory negligence must be affirmatively established by the defendant, when not disclosed by the plaintiffs evidence, that does not preclude its establishment because of the imperiled person having been killed leaving no eye-witness of the event. The-duty to look and listen and to see or hear a train in plain sight or hearing and to keep out of its pathway is such that in case of failure to do so, in absence of evidence to the contrary, a presumption of due care is displaced by the presumption of negligent failure to discover the danger or negligent effort to cross the track in face of danger. *Groesbeck v. C., M. & St. P. R. Co.*93 Wis. 505, 67 N. W. 1120; *Koester v. C. & N.*W. *R. Co.*106 Wis. 460, 82 N. W. 295; *Buckmaster v. C. & N. W. R. Co.*108 Wis. 353, 357, 84 N. W. 845; *Watermolen v. Fox River E. R. & P. Co.*110 Wis. 153, 85 N. W. 663; *Ullman v. C. & N. W. R. Co.*112 Wis. 150, 164, 88 N. W. 41.

Without suggesting that- *Winstanley v.*C., *M. & St. P. R. Co.*72 Wis. 375, 39 N. W. 856, upon which counsel most rely as to this branch of the case, was, in view of the peculiar facts there disclosed, improperly decided, we may well say in passing that some things said in the opinion are quite out *395of harmony with the decisions of this court during the last twenty years, and with rules of law firmly established by such decisions, and we may say, in the same connection, out of harmony with decisions made prior thereto by this court and-decisions generally in other jurisdictions.

In *Haetsch v. C. & N. W. R. Co.*87 Wis. 304, 58 N. W. 393, the facts were so like'those in the *’Winstcmley Case*as to confirm what we have'said. The learned justice who Wrote the opinion in one wrote the opinion in the other. The facts in the later case were very much like those in the one at hand. Plaintiff relied upon want of any direct evidence as to the conduct of the deceased immediately before the happening of the accident. Speaking to the situation the court said:

> “We have these positive and material facts: (1) That the deceased could have seen the train approaching if he had looked, or could have heard it if he had listened, before he came upon the crossing. (2) He came upon the crossing and was killed by the train. (3) The presumption in-favor of life is that he came upon the crossing without seeing the train or knowing that it was so near. Therefore, he did not look or listen, and therein he was negligent. If he did look, and saw the train approaching and so near the crossing, and then drove and ran his horse, supposing that he could pass, the crossing ahead of the train, as seems quite plausible, he was grossly negligent. These facts, clearly established by the evidence, are conclusive of the want of common care of the deceased that contributed to his death. Under the same circumstances, if a plaintiff should testify in his own case of injury, that he did look and listen before driving upon the crossing, we would say, as the supreme court of Pennsylvania said in *Myers v. B. & O. R. Co.*150 Pa. St. 386, 24 Atl. 747, 'that it is trifling with justice to permit a jury to find that it is true.’ That the deceased did look and did not see the train was a natural and physical impossibility.”

It is not infrequent in a case of this sort where death, or unconsciousness terminating in death, was instantaneous, leaving no one to tell how it occurred, that the personal repre*396.sentative, pinning bis faitb to the rule that contributory negligence must be affirmatively established and absence of direct evidence of the fact in issue, confidently challenges defendant to prove his case and with no less confidence urges here affirmance or reversal according to his interest, not appreciating that *res ipsa loquitur*applies to such a situation, when the facts indicate that had the deceased done those 'things which he was in duty bound to do or take the risk of failure, the accident would not have happened, the result establishes negligence.

The foregoing principle applies with more than ordinary force in this case in view of the verity that there was nothing interfering with capacity of the driver to stop his horse at a ■safe distance from the track and the fact that the trial judge, for a better understanding of the evidence, with the jury took ■a careful view of the physical situation.

In determining the question of whether the trial court cor*-.rectly decided that contributory negligence as matter of law ■appeared from the evidence, there seems to be left only the subsidiary question of whether the presence of the train in close proximity to the crossing would have been known to the deceased had he used his senses as he should have done for that purpose. That he was perfectly familiar with the crossing and with the fact that he was about on the time for a train to arrive; that he was driving a gentle horse, not inclined to go fast unless urged to do so; that he was rather ■■above than below the average in intelligence for a boy of his years; and that he ought to have known and did know of the dangers incident to crossing a railroad track, appear so satisfactorily as not to be open to doubt for a moment. He not only must have known, as indicated, independently of any special cautionary admonishment, but he was carefully admonished on the subject, as the evidence shows, before starting out on the particular journey. There are these further unquestionable facts: The railroad track was nearly level *397for a distance of over one third of a mile from the crossing-in the direction from wbicb the train was 'coming. There was ample opportunity to turn from the road at a point eighty-one feet from the crossing when the train must have been in plain sight and hearing. The accident happened in the early morning hours. The .headlight of the engine was burning' as were the .lights in the coaches. It was foggy and misty so as to somewhat obscure the rays of the headlight,, but the evidence is all one way that it cast its rays over and upon the highway while the deceased was a considerable distance from the crossing, and that the train was plainly visible from the time he was some over 100 feet therefrom until the fatal event occurred. The physical situation in these regards appears from the evidence beyond any manner of doubt, and the finding as to the speed of the train and the evidence of the speed the deceased was going before reaching a point sixty-sis feet from the crossing and thereafter shows that at such point the train could not have been more than about 450 feet from the crossing nor more than about 400 feet from him, and that the view was then, as' it had been for some fifty feet or more further back, unobstructed in the direction from which the train was coming for some over 2,000 feet. At the particular point the whole train must have been in full view, the rays of the headlight illuminating the crossing and vicinity thereof. The on-rushing train with the engine bell sounding, so short a distance away, with neither wind nor other material interference with the transmission of sound, must have been, on that still January morning, so conspicuous to the eye and so obvious to the ear that its presence must have been known to the deceased had he paid any attention whatever to the matter. ■ Moreover, it is hard to^ conceive how he could have well avoided knowing of ' it; ."Why did he not stop when the slightest regard for his personal safety and that of his sister demanded it ? In view of this picture, by no means overdrawn it is thought, and the *398undisputed and indisputable finding of tbe jury as to tbe borse being under control, can there be any other rational solution of tbe matter than that tbe unfortunate but reckless boy with bis companion challenged tbe train in a race for tbe crossing, resulting in tbe instantaneous passing of tbe two young and valuable lives beyond tbe impenetrable veil of eternity? We cannot see any. All tbe incidents, of which there are many — we have not related them all, — confirm it .and none throw doubt upon it. Tbe location of tbe dead boy and girl, and of tbe cntter and harness and tbe condition of each immediately after tbe lamentable event, show that tbe borse must have reached tbe near rail at about tbe instant the front of tbe engine passed. Tbe fact that a neighbor who passed over tbe crossing shortly before tbe deceased reached it, speeded up bis borse to get seasonably across, showing that baste on bis part was supposed to be required to get safely over, and indications that as be speeded bis borse tbe deceased did likewise, bnt by reason of difference in tbe character of their horses and conveyances tbe deceased could not make tbe time- of tbe one ahead, these and other things that might be referred to, lead irresistibly to tbe conclusion we have reached.

In view of tbe foregoing stated principles, undisputed evidence, and findings it needs no further discussion to demonstrate that tbe trial court’s decision must stand. Tbe jury, on tbe undisputed evidence as to opportunity for tbe deceased to see and bear tbe approaching train while be was more than 100 feet from tbe crossing and throughout tbe entire course thereafter up to tbe fatal event, might well have been instructed that if they found as to tbe third question in tbe negative to find as to tbe second in tbe affirmative.

Tbe result of tbe submission evidences, in a most striking way, the importance of tbe special-verdict law, properly applied, in tbe administration of justice. Tbe jury passed upon the third question, doubtless carefully regardful of all *399the evidence bearing tbereon. The effect of the finding in the ultimate was to them in obscurity. When they came to the seventh question they appreciated its importance, and ■doubtless from the best of motives, as regards right in the abstract, but without apprehending clearly legal principles, which the court endeavored to clearly give them, reached a ■conclusion, which in view of the answer to the third question ■and the undisputed evidence is indefensible.

“Pity ’tis ’tis true” that in these eases which take such ■strong hold of human sympathies, juries sometimes, uncon-sciously probably, are irresistibly so swung away from the ■safe legal anchorage that they fail to rise to the level required in the discharge of such onerous and important duties. Hence the great importance of the legal effect of each special finding being, for their protection and the ends of justice as well, obscured from their view as much as practicable.

We have now discussed directly, or incidentally, every important matter on this appeal. Much of the brief of counsel for appellant is taken up in discussing minor questions passed upon by the jury adversely to appellant, in deciding major ■questions, in regard to which their decision is not challenged. Manifestly, we need not heed what is said in that field.

Complaint is made because the court did not permit appellant to introduce evidence of experiments respecting opportunity for seeing a train coming as the one in question did by •a person traveling as the deceased traveled. If that were -error it was harmless, since the physical situation beyond room for reasonable controversy was as before indicated. Had the witnesses who were tendered testified out of harmony therewith it could not rightly have produced a different result than the one reached. It is a mistake to suppose that ■such a situation can be thrown into doubt so as to carry the ■question to a jury by evidence from the mouths of witnesses. Such evidence is not of sufficient weight to turn the scales ■even from a perfect balance. With an intelligent jury bent *400upon performing its duty it tends rather *to*strengthen than to impair the adversary's case. As suggested in effect in *Haetsch v. C. & N. W. R. Co.*87 Wis. 304, 58 N. W. 393, it would be trifling with justice to permit a jury to find contrary to the evident physical fact, even if the person imperiled were-present to testify and he or any number of witnesses impeached it by their words.

The suggestion is. made that the defense of contributory negligence in such a case as this was abrogated by ch. 595,. Laws of 1907. It is sufficient to say on that subject that the-rights of the parties were fixed before passage of that law. They could not in any event be varied by it. Moreover,, there is nothing in the enactment indicating a legislative purpose to make it retroactive. The cases cited by counsel at this point do not have any bearing thereon. Counsel fail to-distinguish between rights and mere remedies. This belongs to the former. When rights become vested, having certain characteristics, among them a remedial feature essentially forming a part thereof, not a mere remedy, they cannot be-changed even as to such feature without impairing the right itself. The remedial element in such a case is inseparable-' from the right of which it forms a part and so is under constitutional protection as regards property rights. *Peninsular L. & C. Works v. Union O. & P. Co.*100 Wis. 488, 76 N. W. 359; *Hammel v. Cairnes,*129 Wis. 125, 107 N. W. 1089. So the conclusion must be that the judgment complained of' is right.

The loss to the surviving relatives by the untimely death of' appellant’s intestate and his sister and the still greater loss to-the public by the destruction of -the two young lives must be-charged up to offerings on the altar of our modern conditions with its peculiar dangers, its duties, its responsibilities, and its infirmities. Rules of law cannot be changed by the-court and adapted to 1he exigencies of particular cases however distressing they may be. With indifference to results,. *401except as seriousness thereof may stimulate greater -care, established, principles must be applied as the infallible test of what is right and what is wrong in the legal aspect. Whether the law as we find it is as we would have it to be if we were permitted to make it, instead of being mere instrumentalities to apply it, is immaterial. Our responsibility begins when we are invoked for its application. It ends when we 'apply it as we find it. The grade of fidelity with which that duty is performed is to be measured by the vigor and courage with which we labor in our own special field, leaving the responsibility for changing the law to the department of government in which the constitution has lodged it. This is said in passing without'purpose to suggest doubt as to whether what is, as regards the Taw, is right, so far as practicable, -from the standpoint of right in the abstract.

*By the Gourt.*— The judgment is affirmed.