
    Glonek, Respondent, vs. Chicago, St. Paul, Minneapolis & Omaha Railway Company, Appellant.
    
      January 29
    
    February 18, 1913.
    
    
      Railroads: Injury to person on street: Defective crossing:Negligence in operating train: Contributory negligence: Evidence: Questions for jury.
    
    
      1. In an action for injuries to plaintiff who, after her foot had been caught between the rail and a plank beside it at a street crossing of the defendant’s railway, was struck by a train, the evidence is held sufficient to sustain findings by the jury that the crossing was insufficient for public use and that defendant was negligent in the operation of the train.
    2. Evidence in' such case, tending to show that the train was about three blocks away when plaintiff attempted to cross the track, that had she not been caught and fallen she would have had ample time to cross, and that the day was stormy, windy, and dusty so that one could not .see more than three blocks, together with her own testimony that she looked and listened before going upon the track and saw no train coming, was sufficient to support the verdict to the effect that plaintiff was not guilty of contributory negligence.
    Appeal from a judgment of tbe circuit court for Douglas county: EbaNK A. Ross, Circuit Judge.
    
      Affirmed.
    
    This is an appeal by tbe defendant from a judgment of tbe circuit court in a personal injury action. Tbe action was brought to recover for personal injuries sustained by plaintiff May 5, 1911, by coming in contact with a freight engine at tbe intersection of tbe railroad track and Elm avenue in tbe city of Superior. Tbe negligence alleged is that tbe appellant used old, rotten, and splintered planks in its track where tbe same crossed said street and improperly placed and failed to keep tbe same in repair, in consequence of which large openings were left, and that tbe crossing over said street was unsafe, defective, dangerous, and unfit for public travel; that tbe train was run at a high and dangerous rate of speed without warning and carelessly and negligently operated and managed.
    
      Appellant admitted tbe injury, but denied negligence on its part and alleged negligence on tbe part of plaintiff.
    Tbe jury returned tbe following verdict:
    “(1) Did plaintiff on May 5, 1911, suffer injury to ber person as a result of being struck by a train on defendant’s track at tbe point where said track crosses Elm avenue in Superior? A. (by tbe court). Yes.
    “(2) Was defendant’s crossing at tbe time and place where tbe plaintiff claims to have been injured, insufficient for public use? A. Yes.
    “(3) If you answer question 2 'Yes,’ did tbe defendant have notice of such insufficiency as that by tbe exercise of ordinary care it should have remedied it before plaintiff was injured ? A. Yes.
    "(5) Was defendant guilty of any want of ordinary care in not discovering plaintiff and stopping tbe train in time to avoid tbe accident ? A. Yes.
    "(7) If you answer question 2 'Yes’ and question 5 'Yes,’ then were tbe insufficiency of the crossing, and want of ordinary care on defendant’s part in not discovering tbe plaintiff in time to avoid tbe accident, tbe proximate cause of plaintiff’s injury? A. Yes.
    “(8) Was plaintiff guilty of any want of ordinary care in tbe premises which contributed to produce ber injury? A. No.
    ''(9) What amount of money will reasonably compensate tbe plaintiff for ber injury? A. $1,500.”
    Tbe usual motions were made by appellant, which were denied and judgment entered in favor of tbe plaintiff and against tbe appellant, from which this appeal was taken.
    Eor tbe appellant there was a brief by Geo. IF. Peterson and Solon L. Perrin, and oral argument by Mr. Peterson.
    
    IF. P. Graxoford, for tbe respondent.
   EjeewiN, J.

Tbe jury found tbe defendant guilty of negligence as charged, acquitted tbe plaintiff of any contributory negligence, and assessed plaintiff’s damages at $1,500. The court below sustained tbe verdict of tbe jury on all points. Under the familiar rule of this court the judgment of the court below sustaining the verdict of the jury upon the facts cannot be disturbed unless clearly wrong.

The assignments of error raise two questions, namely, (1) the negligence of the defendant; and (2) the contributory negligence of the plaintiff.

There is credible evidence to support the finding on both questions, therefore the judgment cannot be disturbed. A very vigorous attack is made by counsel for appellant upon the sufficiency of the evidence to support the verdict. The evidence tends to show that while plaintiff was crossing the track of defendant at the intersection of Elm avenue in the city of Superior, Wisconsin, and carrying a child in her arms, her foot was caught in the opening between the rail and the plank beside the rail in consequence of the defective and insufficient condition of the crossing over defendant’s track; that when plaintiff’s foot became caught she fell upon the track, the child was thrown from her-arms, and she was struck by the train, thrown off the track, and injured. Several photographs were put in evidence, which indicate a rather bad, defective, and insufficient condition of the crossing. The condition appearing from the photographs is corroborated by other evidence given upon the trial. There was also evidence tending to show negligence in the operation of the train by defendant. True, there is a sharp conflict in the evidence on these points, but the credibility of the witnesses and the weight of the evidence was for the jury.

It is also insisted by appellant’s counsel that the evidence shows that the plaintiff was guilty of contributory negligence, and that upon that question the verdict is not supported by the evidence. Counsel presses this point, apparently, with •great confidence. It is said that the point is “almost beyond discussion;” that the approaching train was in full view of plaintiff from a point 350 feet north of the crossing, and several cases in this court are cited as controlling, namely: Koester v. C. & N. W. R. Co. 106 Wis. 460, 82 N. W. 295; Nelson v. D., S. S. & A. R. Co. 88 Wis. 392, 60 N. W. 703; Schneider v. C., M. & St. P. R. Co. 99 Wis. 378, 75 N. W. 169; Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W. 179; Vant v. C. & N. W. R. Co. 101 Wis. 363, 77 N. W. 713; Langhoff v. M. & P. du C. R. Co. 23 Wis. 43; Haetsch v. C. & N. W. R. Co. 87 Wis. 304, 58 N. W. 393; Groesbeck v. C., M. & St. P. R. Co. 93 Wis. 505, 67 N. W. 1120; Lockwood v. Belle City St. R. Co. 92 Wis. 97, 65 N. W. 866.

We shall not prolong this opinion by a review of the foregoing cases. It is sufficient to say that tbe facts in these cases differ quite materially from the facts in the instant case. In the instant case there is evidence that the train was about three blocks away when plaintiff attempted to cross, and the jury would be well warranted in finding that had she not been caught and fallen she had ample time to cross, and that it was not contributory negligence to cross when the train was at such a distance. There is evidence that plaintiff got up after falling and after her foot had been extricated from between the plank and rail, and. was struck as she was about to cross the last rail of the track upon which the train was approaching. True, there is evidence that plaintiff was about twelve feet from the track when the engine was about twelve feet from her and that she made an effort to get across in front of the engine. But on this as on other points the credibility of the witnesses was for the jury. • There is credible evidence in the record to support the verdict that plaintiff was not guilty of contributory negligence.

There is evidence that the day was stormy, the wind blowing, and dust in the air, so one could not see over three or four blocks. One witness testified that at the time plaintiff fell upon the track the train that struck her was two blocks and a half away. Plaintiff testified that she looked and listened before going on the track, saw no train coming on the track she crossed, could not see more than three blocks; “it was awful stormy and wind blowing, dusty; just cloudy like, wind blowing.” We shall not review the evidence further on this point. We think it ample to support the verdict.

The case is quite similar in facts to Hughes v. C., St. P., M. & O. R. Co., which was before this court twice (122 Wis. 258, 99 N. W. 897, and 126 Wis. 525, 106 N. W. 526), in which case it was held that the evidence was sufficient to support the verdict.

We are convinced that no error was committed.

By the Court. — The judgment is affirmed.  