#### Winchell, Respondent, vs. Abbot and another, Trustees, Appellants.

*September 3*

September *23, 1890.*

*Railroads: Injury to 'person at sidewalk crossing: Contributory negligence: Failure to look and listen: Court and jury: Absence of flagman: Special verdict: Judgment.*

1. The plaintiff was struck and injured by defendants’ locomotive on a sidewalk crossing in a thickly settled portion of a city. It was ini the night-time and the locomotive had come down the street behind-her, going in the same direction. The track curved sharply just before crossing the sidewalk, which was planked continuously on a level with the tops of the rails. The testimony tended to show, among other things, that the plaintiff was not familiar with the locality and did not know the precise position of the crossing; that trees and telegraph poles between the track and’ the sidewalk obscured, to some extent, her view of the track; and that, because of the curve, the light from the head-light did not fall directly upon her until the locomotive was very near the crossing. *Held*that, notwithstanding a special finding that if the plaintiff had looked before attempting to1 cross the-track she could have seen the light from the head-light, it was still a question for the jury whether she was guilty of any contributory negligence.

*%*No weight can be given to a finding in the special verdict that the defendants’ failure to have a fight or a flagman at the crossing, to' warn the plaintiff of the approaching locomotive^ was negligence.

The jury was not competent to determine that proposition.

3. But, the defendants’ negligence in failing to provide proper means for securing the safety of persons at the crossing being conclusively established, the court should base its judgment upon the existenóe ' of such negligence, although there is no valid finding to that effect in the special verdict. *■ , ,*

*372APPEAL from tbe Circuit Court for *Winnebago*County.

On December 17, 1888, at about 8 o’clock in tbe evening, tbe plaintiff was run against and injured by a locomotive engine on a railroad in tbe city of Osbkosb, operated by tbe defendants as trustees. Sbe brought tbis action to recover damages for sucb injury.

Tbe defendants’ railroad extends through tbe city of Osb-kosb, north and south. It enters Division street from tbe north, at tbe north end of tbe street, probably half a mile or more north of tbe place of tbe accident, and runs south along tbe street nearly to tbe point where plaintiff was injured. It then curves to tbe east entirely across tbe street and east sidewalk thereof. It crosses tbe sidewalk at an angle so acute that from tbe point where tbe east rail of tbe track intersects tbe sidewalk to where tbe west rail leaves it is fifty-two feet. Tbe crossing is all planked, making a continuous sidewalk level with tbe tops of tbe rails, with no break except a groove, perhaps an inch and a half wide, inside each rail for tbe flanges of tbe engine and car wheels to run in.

Immediately before tbe accident,, plaintiff came west on Polk street (which is tbe last street crossed by tbe track before it so curves east) to Division street, and turned down that street on tbe east sidewalk thereof, going in tbe direction of her home. Sbe bad a bundle on one arm and a basket on tbe other. Tbe contents of these were clothing sbe bad received from a customer and was taking to her own home to wash — sbe being a laundress. Sbe estimated tbe weight of these two packages at about forty pounds. When on tbe crossing, sbe was struck by a passing locomotive, which sbe did not see until sbe was struck, and received tbe injury oomplained^of. Tbe crossing is in a thickly settled portion of tbe city, near tbe business center thereof.

Tbe jury returned a special verdict, which is as follows: “(1) "Were tbe defendants or their employees guilty of neg*373ligence- that caused, tbe injury to tbe plaintiff? Answer. Yes. (2) If yon answer tbe foregoing question ‘Yes,’ state in wbat tbe negbgence consisted. A. In not baying a light or flagman to warn people there was danger. (3) "Was tbe plaintiff guilty of want of ordinary care or prudence that contributed to tbe injury? A. No. (4) Could tbe engineer or fireman have seen tbe plaintiff before tbe locomotive turned on tbe curve? A. No. (5) Immediately preceding tbe accident when tbe plaintiff was injured, was tbe bell being continuously rung as tbe train passed down Division street ? A. Yes. (6) At wbat rate of speed was tbe train running when tbe plaintiff was struck and injured? A. Six miles. (7) Had tbe plaintiff, before she attempted to go across tbe crossing, looked, could she have seen tbe light from tbe bead-bgbt of tbe locomotive? A. Yes. (8) When tbe plaintiff was struck by tbe cow-catcher of tbe locomotive, was she upon tbe crossing, or upon the railway track of tbe defendants south of tbe crossing? A. On tbe crossing. (Ninth question immaterial, and not answered.) (10) If tbe plaintiff is entitled to judgment, at wbat sum do you. assess her damages? A. $1,100.” A motion by tbe defendants for a new trial was denied, and judgment for tbe plaintiff entered pursuant to tbe verdict, from which judgment tbe defendants appeal.

For tbe appellants there was a brief signed by *Charles W.*Fellcer, attorney, and *Howard*Morris, of counsel, and oral argument by *Mr. Fellcer.*

For the respondent there was a brief by *Eaton dk Weed,*and oral argument by *M. H. Eaton.*

LyoN, J.

Tbe only question argued by counsel, and tbe only one to be determined on this appeal, is, Does tbe special verdict support tbe judgment for tbe plaintiff? It is maintained by counsel for defendants that it fails to do so,, because (1) it estabbsbes tbe fact that tbe plaintiff was *374guilty of negligence which, contributed directly to the injury she received; and (2) it demonstrates that the defendants exercised reasonable car‘e and diligence to avoid the injury. .

1. The first proposition is based upon the answer to the seventh question in the special verdict, which is that, had the plaintiff looked before she attempted to cross the railroad track, she could have seen the light from the headlight of the locomotive which ran against her: But the testimony tends to show that, because of the curve in the track (which defendant’s engineer testified is a sharp one), such light did not fall directly upon the plaintiff until the locomotive was very near the crossing. Also that there were trees and telegraph poles between the track and sidewalk, which to some' extent obscured her view of the track nearly to the crossing. It also tends to show that the plaintiff was not familiar with that portion of Division street. She had been there but a few times since the railroad was constructed, and not at all for two or three years before she was injured. She knew the railroad crossed the sidewalk .in that vicinity, but did not know the precise location of the crossing. Considering these circumstances, and, further, that the injury was inflicted at night and probably immediately after the plaintiff reached the track — presumably before she had time to realize the peril of her situation, or comprehend what she should do to avoid it,— it seems very clear that the question of her negligence, notwithstanding the seventh finding in the special verdict, was still a question of fact for the jury, and that they might properly find ' from the testimony that the case is an exception to the gen-bra! rule that a person approaching a railroad crossing must look and listen for trains,— stopping for that purpose under some circumstances,— before he attempts to cross, or he is negligent. See *Phillips v. M. & N. R.*Co., *ante,*p. 349. We conclude, therefore, that the finding which acquits the *375plaintiff of negligence contributing to ber injury is supported by the testimony and should not be disturbed.

2. In running its locomotive across the sidewalk, did the ■defendants, under all the circumstances of the case, exercise proper care to avoid injuring the plaintiff? It is settled by the special verdict that the locomotive was running at the rate of six miles, an hour, and the bell thereon was being rung continuously before and while crossing the sidewalk. This was a compliance with the requirements of the statute in those particulars. R. S. sec. 1809. It is quite ■evident that neither the fireman nor engineer could have .seen the plaintiff on the sidewalk before the locomotive turned the curve, for the light from the head-light did not •fall upon her, and after that time it was doubtless impossible to stop the engine before crossing the sidewalk; Hence, if any fact is found in the special verdict which' charges the defendants with negligence, it is their failure to have at the crossing a light or flagman to warn the plaintiff of the approach of the locomotive. The jury found that such failure was negligence. On the authority of *Heddles v. C. &*N. *W. R. Co.*14 Wis. 239, which is in accord with the great weight of authority elsewhere, the jury were not ■competent to determine that proposition. Many of the adjudications on the subject are referred to by Mr. Justice Cassoday in the opinion in that case. True, in *Winstanley v. C., M. & St. P. R. Co.*72 Wis. 375, it is suggested in the opinion by Mr. Justice OnTONfhat the question of the obligation of a railway company to observe such extraordinary precautions in very dangerous places may be for the jury;' but, after a thorough examination of the subject in the *Heddles*Case, we all reached the conclusion that the question cannot properly be submitted' to the jury. The rule adopted in the latter case is clearly stated'in an extract there made from the opinion by Fmon, J., in *Houghkirk v. D. & H. Canal Co.*92 N. Y. 219, which will bear' *376repetition Rere. It is as follows: *“*The fact [of the presence or absence of a flagman] may be proven as one of the circumstances under which the train was moved, and by which the degree of care requisite in its handling and running may be affected, so that the question never is whether there should have been a flagman, or one ought to have been stationed at the crossing, but whether, in view of his presence or absence, the train was moved with prudence or negligence.” Although, in the above case, the question related only to the employment of a flagman, yet, manifestly, the same rule applies to any case in which it is claimed the railway company ought to maintain, at highway crossings, any extraordinary precautions, not specially required by statute, for the protection of travelers on such highways.

It follows that no weight can properly be given to the finding that the failure of defendants to have a light or flagman at the sidewalk crossing, to warn plaintiff of the approach of the locomotive, is negligence; but there still remains a finding that such failure caused the injury to the plaintiff. Such is the obvious effect of the first and second findings in the special verdict, considered together; that is to say, the jury found therein two facts: (1) That the failure to have at the crossing either a light or flagman to warn plaintiff of her danger caused the injury complained of; and (2) that such failure was negligence. The jury were competent to determine the first proposition; hence the fact thus found is a verity in the case. The finding of the other proposition is, as we have. seen, ineffectual for any purpose. Hence, there is no sufficient authorized finding in the special verdict that the defendants were guilty of negligence which caused the injury.

But there is another feature of the casé which, in our opinion, supplies the defect in the verdict. The undisputed evidence proves that the sidewalk crossing was a peculiarly dangerous one, especially to the plaintiff, who, burdened *377with packages, was passing over it in the darkness of the evening, going in the same direction with the locomotive, Without any accurate knowledge of the exact location of the track. Her only protection from injury was the watchfulness of the engineer and fireman on the locomotive, and, by reason .of the trees, telegraph poles, and curve in the track, their vigilance was entirely inadequate to protect her. It is clear that, in view of these conditions, it was the duty of the defendants to provide some other means to secure her safety. Because they failed to do so the plaintiff was injured, for it is a verity in the case that she was in the exercise of proper care. Such failure is negligence, and, the negligence being conclusively established, the court properly may, and should, base its judgment upon the existence thereof, although there is no valid finding to that effect in the special verdict. Such is the rule in this state firmly established by many adjudications of this court.

In the *Heddles Case*it was not conclusively proved that it was the duty of the railway company to provide any additional precautions for the safety of travelers on the crossing. This fact distinguishes that from the present case. The jury found that the absence of a fight or flagman on the crossing caused the injury complained of. These were probably named because they are the usual appliances in such cases. Doubtless the use of other precautions instead, equivalent to these, would fulfil all legal requirements.

*By the*Cowrt.— The judgment of the circuit court is affirmed.

Oassodat, J.

The finding of the jury as to the defendants’ negligence should be construed and considered in connection with all the undisputed facts and circumstances in the case. *Stilling v. Thorp,*54 Wis. 536, 537. When so construed and considered, the finding of the defendants’ negligence seems to be sustained. The mere fact that one *378of the findings is to the effect that the defendants’ négli-gence consisted in the absence of a light or flagman did not destroy the force of the other undisputed facts and circumstances as evidence; and hence the finding of the. defendants’ negligence is sustained by , the evidence, and the judgment is properly affirmed.