#### Steber, Administrator, Appellant, vs. Chicago & Northwestern Railway Company, Respondent.

*September 2*

*September 23, 1902.*

*Railroads: Killing of person at street crossing: Contributory negligence: Rights of a passenger.*

1. One who, while crossing a railway track, was killed hy an engine which was approaching near at hand, and which she would have seen had she looked in that direction before stepping on the track, was guilty of contributory negligence as a matter of law.

*2012. No one, even though he have the rights of a passenger to the care of the railway company for his safety and no other way is open to reach his destination, is excusable for stepping upon a railway track without looking both ways and listening for approaching trains.

Appeal from a judgment of the circuit court for Lang-lade county: JohN GoodlaNB, Circuit Judge.

*Affirmed,.*

Action for damages, caused, as alleged, to Wenzl First by the wrongful conduct of defendant in that its servants negligently operated one of its locomotive engines so as to produce his wife’s death. The deceased attempted to cross defendant’s railway track at the intersection thereof with one of the public streets of the city of Antigo in the nighttime, while one of its switch engines was rapidly approaching such locality. She was struck by the engine and so injured that she died.

The particular acts of omission and commission constituting the alleged negligence are as follows: Operating the engine at an unlawful rate of speed; neglect to ring the engine bell as the approach was made to the railway crossing; failure to have a watchman or flagman at the crossing as required by the city ordinances of the city of Antigo; failure to maintain gates at the crossing as required by the city; and failure to give any notice to persons, about to use the crossing for legitimate purposes, of the approach thereto of the switch engine. All the allegations of negligence were put in issue by the answer, and contributory negligence was pleaded as a defense.

The undisputed evidence was to the following effect: The accident happened on a dark, rather stormy night. There was no street light at the crossing. The situation was such that, as a person approached the crossing from the east, as the deceased did on the occasion of the accident, there was no obstruction to prevent her seeing an engine coming from the north for a distance amply sufficient to enable her, in the ex•ercise of ordinary care, to avoid being injured by it. The *202railway tracks ran north and south. The depot was just-south of the street, which crossed the tracks at right angles,, and upon which deceased was walking when she was injured. Prior to the injury she was at the depot with two- acquaintances, a man and his mother, presumably to meet a person who was expected soon to arrive on a train from the south. She remained on the depot platform till the train arrived and such person alighted therefrom. The four then started north on the platform, walking on the easterly side of the main, track till they were within the limits of the street. The engine of the passenger train was located across the sidewalk on-the southerly side of the street. West of the main track was a switch track. A headlight was on the passenger engine. It threw its light across the region common to the street and the railway track. The deceased and her companions, desiring to go to a point west of the tracks, passed into the street and them somewhat northwesterly so as to avoid the passenger engine. Two of deceased’s companions proceeded first. She, accompanied by the other, walked a little way behind them. The former got across the switch track, and just as the latter-stepped upon it the switch engine, backing up from the north, struck her, inflicting fatal injuries.

The substance of the evidence material to be considered, in addition to such as has been referred to in a general way, is as-follows: John McArthur, a witness for plaintiff, said he did not see any light on the rear end of the switch engine; that it was backing up when it struck deceased; that he could not say but that there was a light on the engine; that just before the accident he was on the depot platform near the passenger engine and heard the switch engine coming. Peter Jagla, a witness for plaintiff, said he was one of the party accompanying the deceased at the time of her injury; that he and his sister went ahead while his mother accompanied the deceased ;■ that he hurried up to get across the track ahead of the switch engine; that the engine on the passenger train made some-. *203noise; that be saw tbe switch engine just as be got on tbe track; tbat be bad to jump to get across; tbat be did not see any light on tbe engine, nor bear any bell; tbat be made a written statement of tbe circumstances characterizing tbe accident shortly after it occurred, in which be said tbat be beard a bell upon tbe engine and saw tbe engine coming about tbe time be crossed tbe track. Tbe woman who was in tbe immediate company of tbe deceased at tbe instant of tbe accident said she did not see any light on tbe engine nor bear any engine bell; tbat she and deceased were about forty feet behind her son and daughter; that she saw they got across and thought she and her companion could too; tbat she did not see tbe engine. Another witness called for plaintiff said be was near tbe passenger engine at the time of tbe accident; 'that be beard tbe switch engine approaching tbe crossing. John Gaff-ney, another witness for plaintiff, said be saw tbe switch engine approaching tbe crossing, and beard it; tbat be was on tbe passenger engine; that there was a light on tbe switch engine and tbat tbe bell was ringing as it approached. Tbe evidence on defendant’s part fully corroborated tbat of tbe last witness. It was further to tbe effect tbat deceased and her companion, as they approached tbe crossing, did not pay attention to whether an engine was approaching, and tbat one of tbe trainmen who was on tbe footboard of tbe tender and bad a light in bis band, grabbed bold of and tried to save them.

At tbe close of the evidence tbe court directed a verdict in defendant’s favor, upon which tbe judgment appealed from was rendered.

*Max Hoffman,*for tbe appellant, contended, *inter alia,*tbat a person who walks across a track at a railway station to take passage on a train is a passenger, for whose safety tbe railroad company is bound to exercise tbe highest degree of diligence.

*Chicago & H. I. H. Co. v. Chancellor,*60 Ill. App1. 625. A person who comes upon a railroad platform to wel*204come or speed a parting guest is there by authority of the company, as much as a passenger. *Qillis v. Pennsylvania B. Go.*59 Pa. St. 129, 98 Am. Dec. 317; *McKone v. M. O. B. Go.*51 Mich. 601, 47 Am. Kepi 596; *Doss v. M., K. & T. B. Go.*59 Mo. 27, 21 Am. Kepi 371; *Dowd v. G., M. & Si. P. B. Go.*84 Wis. 114, and cases cited. A railway company owes the public a duty to provide for a safe place to get to and from its depot. A passenger or a passenger’s friend comes on the depot ground of a railway company by an invitation of the company. *Dowd v. G., M. & St. P. B. Go.*84 Wis. 105, 114; *Patten v. G. & N. W. B. Go.*32 Wis. 524. A passenger or an intending passengef going to take a train, or leaving a train, has a right to presume that the track will be kept clear in order to enable him to reach the station or the train or get away from the station in safety. *Baltimore & O. B. Go. v. Maryland,*60 Md. 449; *Gaynor v. 0. O. & N. B. Go.*100 Mass. 208; *Klein v. Jewett,*26 N. J. Eq. 474; *Brassell v. N. Y. G. & H. B. B. Go.*84 N. T. 241; *Chesapeake & O. B. Go. v. King,*99 Fed. 251, 40 O. 0. A. 432. The rule requiring a traveler on a highway, crossing a railroad track, to use his eyes and ears to ascertain whether a train is approaching, does not apply to passengers who are crossing a track at a station to get on a train, or leaving a train. Such a passenger is not guilty of contributory negligence in failing to look and listen before crossing the other tracks. *'Terry v. Jewett,*78 N. T. 338; *Beecher v. L. I. B. Go.*161 N. Y. 222, 55 N. E. 899; *Brassell v. N. Y. G.*& *H. B. B. Go.*84 N. Y. 241; *Chicago O. B. Go. v. Bobinson,*127 Ill. 1; *Chesapeake & O. B. Go. v. King,*99 Fed. 251, 40 O. C. A. 432; *Chicago, M. & St. P. B. Go. v. Lowell,*151 U. S. 209; *Warner v. B. & 0. B. Go.*168 U. S. 339; *Graven v. MacLeod,*35 O. O. A. 47, 92 Fed. 846; *Alabama G. S. B. Go. v. Coggins,*32 O. O. A. 1, 88 Fed. 455; *Cincinnati Si. B. Go. v. Snell,*54 Ohio St. 197, 43 N. E. 207; *Philadelphia, W. & B. B. Go. v. Anderson,*72 Md. 519, 8 L. K. A. 673; *St. Louis & S. W. B. Go. v. John**205son, 59 Ark. 122, 26 S’. W. 593; *Pennsylvania Go-, v. Mc-Caffrey,*173 Ill. 169, 50 N. E. 713; *Burnham v. W. W. B. Go.*91 .Mick 533, 52 N. W. 14.

*Ediuard M.*Hyser, for tbe respondent.

MaRShall, J.

Very little can profitably be said in deciding tbis case. Four errors are assigned. All, so far as they relate to tbe issues made by tbe pleadings, may be properly resolved into tbis one proposition: Did tbe trial court err in deciding that tbe evidence disclosed, as a matter of law, contributory negligence on tbe part of tbe deceased ? We are unable to see bow, in tbe light of well-settled legal principles, tbe affirmative of that can be considerately urged. Tbe duty of a person about to step upon a railway track to look both ways and listen, and to discover those dangers which can be readily discovered by tbe exercise of ordinary attention to that end by .one so circumstanced, and not to1 go upon tbe track in tbe face of such dangers, is absolute. It is as firmly established as any rule of law can well be. If it were a fact, as claimed in tbis case, that tbe deceased bad tbe rights of a passenger as regards care for her safety by tbe railway company, and that she bad no other way of reaching her destination than by going across tbe railway track, that does not constitute any exception to tbe general rule stated. She was bound to exercise ordinary care for her own safety, and she fell below that standard in failing to use her senses to discover tbe approaching engine, since, from all reasonable inferences from tbe evidence, it was in sight and bearing and so near tbe crossing as to render it dangerous for her to step upon tbe track when she did so. As we read tbe evidence and tbe argument of counsel for appellant, there is no claim that she looked north, on tbe track or listened for a coming train or engine before she proceeded into tbe region of danger. Counsel seems to think that she bad the rights of a passenger, and that no other way to reach her destination than tbe one she *206pursued was open to ber, bence that sbe was excused for proceeding as sbe did, regardless of tbe probability of danger, and was warranted in depending upon respondent to avoid injuring ber. We know of no sucb rule of law. There is no sucb rule. No one is excusable for stepping upon a railway track without first using tbe precautions we have stated for bis own protection. As has often been said, tbe mere presence of the track is an efficient warning of danger. That warning must be reasonably heeded by a person about to cross tbe track, else be will be presumed conclusively, as a matter of law, to assume tbe risk of doing otherwise. *Lofdahl v. M., St. P. & S. S. M. R. Co.*88 Wis. 421, 60 N. W. 195; *Flynn v. Eastern R. Co.*83 Wis. 238, 53 N. W. 494; *Hansen v. C., M. & St. P. R. Co.*83 Wis. 631, 53 N. W. 909; *Schmolze v.*C., *M. & St. P. R. Co.*83 Wis. 659, 53 N. W. 743, 54 N. W. 106; *Schlimgen v.*C., *M. & St. P. R. Co.*90 Wis. 194, 62 N. W. 1045; *Nolan v. M., L. S. & W. R. Co.*91 Wis. 16, 64 N. W. 319; *Lockwood v. Belle City St. R. Co.*92 Wis. 97, 65 N. W. 866; *McCadden v.*Abbot, 92 Wis. 551, 66 N. W. 694; *Cawley v. La Crosse City R. Co.*101 Wis. 145, 77 N. W. 179; *White v. C. & N. W. R. Co.*102 Wis. 489, 78 N. W. 585; *Walters v. C., M. & St. P. R. Co.*104 Wis. 257, 80 N. W. 451; *Buckmaster v. C. & N. W. R. Co.*108 Wis. 353, 84 N. W. 845; *Dummer v. Milwaukee E. R. & L. Co.*108 Wis. 589, 84 N. W. 853.

Tbe subject involved in this appeal has been so often before this court, as indicated by tbe cases cited and many not mentioned, and tbe law has been so often declared as stated herein, that there is no room in tbe evidence presented by tbe record for reasonable contention that tbe trial court erred in directing the verdict. Tbe way was open for tbe deceased to see tbe approaching engine. If sbe bad looked north on tbe switch track before she stepped upon it sbe would have observed tbe danger. Sbe must either have failed to perform her duty as to looking, or have observed tbe engine before getting *207in its pathway and heedlessly attempted to rush across the track before it reached her. The legal responsibility for the consequences rests wholly upon the unfortunate woman. The damages caused to her surviving husband were in law so far produced by her that there is no way by which her fault can be so separated from that of respondent, if respondent was also at fault, as to fix upon the latter legal responsibility.

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