(185 N.W.) given by both parties where less definite fig-, street at a point 1,780 feet farther south at ures were given. Some testimony was given in behalf of the defendant as to the distance at which a train going 25 or 30 miles an hour could be stopped. Plaintiff's testimony tended to show that the train stopped about 175 feet from the place of collision. There was testimony that a 700-pound wheel of the demolished truck was wedged between the pilot and the track, serving as a brake, and that the truck weighed nearly 6 tons, and was hurled a distance of about 25 feet. In a special verdict the jury found, in substance, that the train was moving in excess of 12 miles an hour as it approached within 20 rods of the crossing; that the above want of care was the proximate cause of the injury; that the plaintiff used ordinary care in respect to keeping a lookout; and that the amount of the damage was $4,600. The usual motions were made and judgment was ordered for the plaintiff. H. J. Killilea, of Milwaukee, and Williams & Foster, of Fond du Lac, for appellant. least four times on other occasions, but the track in question left the main track about 37 feet north of Military street. He knew of the three lines of railways running north through Fond du Lac, and had passed over them on the forenoon of the day of the accident on his trip to the gravel pit. On this spur track, with which he said he was not familiar, there were no telegraph poles and no cattle guards or fences. There had been a snowfall during the preceding night of three inches or more, and with a northwest wind the snow was blowing and drifting. There was the testimony of several witnesses besides the plaintiff that at the time of the accident the track was all covered with snow, and that in places off the track there were drifts 3 or 4 feet deep. The plaintiff testified that he had much trouble managing the truck on account of the snow; that he had to raise the wind shield three or four inches in order to see to drive; that chains were on all four of the wheels, and that in order to reach a lever and shift gears in managing the machine he had to Reilly & O'Brien and L. J. Fellenz, all of bend over. Fond du Lac, for respondent. JONES, J. (after stating the facts as above). [1] In view of the testimony it is clear that the trial court would not have been Justified in taking from the jury the question of the rate of speed of the train, nor in changing their answer that the train was moving in excess of 12 miles an hour as it approached and was within 20 rods of the crossing. Appellant's counsel rely on Riger v. Railway Co., 156 Wis. 86, 144 N. W. 204, where in the opinion of one witness, formed from imperfect observation, the rate of speed was estimated at about 16 or 17 miles per hour, and where five witnesses testified that the rate was from 4 to 7 miles an hour, and where the train was stopped within 30 feet after the signal. We do not consider the two cases at all analogous. See Swalm v. Railway Co., 143 Wis. 442, 128 N. W. 62. [2] A much more serious objection raised by appellant is that the testimony showed the contributory negligence of plaintiff. The substance of his testimony was that he did not look nor listen, and paid no attention to the approaching train. Without any explanation his frank admission of these facts would be proof of the baldest negligence, and, according to a long line of decisions of this court, would defeat his action. There are numerous circumstances relied on as an explanation, and the question is whether they sufficed to present a question for the jury. Plaintiff's evidence is undisputed that he had never crossed this spur track, which was about 1,200 feet from the western limits of the city, until the day of the accident. He had passed over the main line on Military The train was running down grade at a speed which the jury found beyond the legal rate, with the steam shut off-hence with less than the usual noise-and the wind was blowing from a direction opposite to that of the train. Both parties introduced photographs in evidence, and both parties rely on them. Small ones were taken by defendant's agents on the afternoon of the accident, some of which showed that the rails were plainly, and others, dimly visible. Large photographs taken two days after the accident showed very clearly that the view was unobstructed as claimed, and that at that time the rails at the crossing could be plainly seen. Plaintiff's photographs, all taken in the afternoon of the day of the injury, show the rails as scarcely visible, and the dismantled truck imbedded in deep snow drifts. Except in one of the defendant's exhibits the drifts are not shown. It does not appear in the evidence how many trains had passed before the photographs were taken. [3] It is the popular impression that photographs cannot lie, but those who have had long experience in the trial of lawsuits know very well that, although honestly taken and sworn to, they may and often do convey very false impressions. It was the duty of the jury in connection with all the other evidence to consider the photographs, but they are not controlling upon us. [4,5] It has been argued with ability and earnestness by appellant's counsel that there was no credible evidence to warrant the finding of the jury which absolved plaintiff from contributory negligence, and that it is incredible that he did not know, or ought not to have known, that he was approaching the track of defendant. In considering whether we should set aside the order refusing a new trial there are certain rules of law which are binding upon us. It is settled by a long line of cases in this court, which it is unnecessary to cite, that the burden of proof of contributory negligence is ordinarily on the defendant. It is true that if the jury arrive at a conclusion wholly unwarranted by the evidence or which is very clearly the result of passion or prejudice, so that the court can see that justice has not been done, a new trial may be granted in the discretion of the court. pared to say as a matter of law that these and other similar facts are not proper subjects for the consideration of a jury. In the present case the facts that the track was a spur in the outskirts of the city, without fences or cattle guards; the testimony that the wind was blowing and the snow drifting; that plaintiff was busily occupied in handling a heavy truck with difficulty-were all facts fairly submitted to the jury, and they found that there was no contributory negligence, and their finding was sustained by the trial court. In view of the decisions of this court as to the province of the jury and the effect of [6] On the other hand, if the verdict ar- their decisions on questions of fact, we do rived at is one that reasonable men might not feel justified in reversing the order defind, it is not the duty of the court to dis- nying a new trial. We cite a few of the turb the decision of fact, which the law has many cases which illustrate that the look confided to juries, not to judges. This court and listen rule is not an iron-clad rule subhas repeatedly held that if there is any cred-ject to no exceptions or qualifications. Valin ible evidence to support the verdict it cannot v. Railway Co., 82 Wis. 1, 51 N. W. 1084, 33 be disturbed, and that the judgment of the Am. St. Rep. 17; Sarles v. C., M. & St. P. Ry. trial court sustaining the verdict should not Co., 138 Wis. 499, 120 N. W. 232, 21 L. R. A. be set aside unless clearly wrong. Ellis v. (N. S.) 415, 16 Ann. Cas. 952; Kujawa v. C., Ry. Co., 167 Wis. 392, 167 N. W. 1048; Brun- M. & St. P. Ry. Co., 135 Wis. 562, 116 N. W. ner v. Railway Co., 155 Wis. 253, 266, 143 N. 249; Gordon v. I. C. Ry. Co., 168 Wis. 244, W. 305, 144 N. W. 986, 49 L. R. A. (N. S.) 169 N. W. 570; Winchell v. Abboty 77 Wis. 166, 181; Slam v. Lake Superior T. & T. R. 371, 46 N. W. 665; Phillips v. Railway Co., Co., 152 Wis. 426, 432, 140 N. W. 30; Kroger 77 Wis. 349, 46 N. W. 543, 9 L. R. A. 521; v. Cumberland Fruit Package Co., 145 Wis. Swalm v. N. P. Ry. Co., 143 Wis. 442, 128 433, 443, 130 N. W. 513, 35 L. R. A. (N. S.) N. W. 62; Wade v. C. & N. W. Ry. Co., 146 473; Lam Yee v. State, 132 Wis. 527, 112 Wis. 99, 130 N. W. 890. N. W. 425. In this connection we may refer to the ments of that section shall not be barred by a slight want of ordinary care contributing to the injury or death. In considering this statute, in the opinion of Mr. Justice Eschweiler, it was said: In the United States Supreme Court the statute (subdivision 6, § 1809), which prorule has been thus stated: vides that a recovery for personal injury or "It is well settled that where there is un- death caused by the negligent omission of a certainty as to the existence of either neg-railway company to comply with the requireligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them." Richmond & Ry. Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748, 37 L. Ed. 642; Klotz v. Power Co., 136 Wis. 107, 116 N. W. 770, 17 L. R. A. (N. S.) 904; Harsen v. N. P. Ry. Co., 139 Wis. 186, 120 N. W. 826; Jurkovic v. Railway Co., 166 Wis. 266, 164 N. W. 993; Valin v. Railway Co., 82 Wis. 1, 5, 51 N. W. 1084, 33 Am. St. Rep. 17. [7] It would probably seldom happen that a traveler would be excused for not knowing of his approach to a railroad track in broad daylight, and such ignorance would generally defeat a recovery. But the look and listen rule is not an unbending rule, but one to be considered in connection with all the facts. There may be ignorance of the fact that there is a railroad track at the place in question; the view may be partially obscured by trees or other objects, or entirely covered by fresh snow, as indicated by testimony in this case. It cannot be said as a matter of law that any of these circumstances, or all of them, would excuse the person injured. Nor are we pre "With the legislative change as to the amount of care, lack of which will defeat an action for injury to the traveler on the highway at a railway crossing, there must be a corresponding relaxation of the former rather rigid look and listen rule." Gordon v. Ill. Cent. Ry. Co., supra. Appellant's counsel argue that the speed of the train was not the proximate cause of the injury. In some of the cases cited by them the question of proximate cause was not properly submitted to the jury. In others it is held that the negligence of the plaintiff proximately caused the injury, and in others that in order for the plaintiff to recover he should show that the injury was the natural consequence of the act or omission of the defendant, and that a person of ordinary care ought reasonably to have apprehended that personal injury to another might probably result from such negligence. Appellant's counsel argue that if the engine had been running 10 miles per hour under the (185 N.W.) circumstances in this case the accident was Appeal from Circuit Court, Columbia as likely to occur as if the train was running County; Chester A. Fowler, Judge. 25 miles an hour, and that it could not have been anticipated that the accident would hap Action by William G. Williams and others pen. In an opinion of the court by Mr. Jus- against Ann Jones and others. From an order overruling their demurrer to the answer of defendants Ann Jones and John H. Jones, plaintiff's appeal. Affirmed. tice Vinje, it was said: "It is not necessary that an ordinarily prudent man ought reasonably to have anticipated the particular injury to the plaintiff or to any particular person. It is sufficient that such a man ought reasonably to have anticipated that his conduct might probably cause some injury to another." Coel v. Green Bay Traction Co., 147 Wis. 229, 238, 133 N. W. 23; Sparks v. Wis. Cent. Ry. Co., 139 Wis. 108, 120 N. W. 858; Morey v. Lake Superior T. & T. Co., 125 Wis. 148, 103 N. W. 271, 12 L. R. A. (N. S.) 221; Kujawa v. C., M. & St. P. Ry. Co., 135 Wis. 562, 116 N. W. 249. [8] The jury may have believed that there was a causal relation between the speed of the train and the extent of the injury. It is quite probable that if the train had been running more slowly the injury would have been less serious. Coel v. Green Bay Traction Co., supra. Although the engineer might not have anticipated the specific injury to the plaintiff, it is reasonable that he should have anticipated that travelers might undertake to cross the track, even though a train might be in sight, and that accidents were more likely to happen if the train was running at an illegal than at a legal rate of speed. Under the testimony the jury may have believed that if the train had been going 12 miles an hour or less, the accident would not have happened at all. Ellis Case, supra, 167 Wis. 402, 167 N. W. 1048. We are satisfied that the finding of the jury that the want of ordinary care on the part of the defendant was the proximate cause of the injury. Judgment affirmed. ROSENBERRY, J., dissenting. WILLIAMS et al. v. JONES et al. This action was brought to have adjudicated and determined the respective rights of the plaintiffs and the defendants Ann Jones and John H. Jones in a mortgage of $15,000 executed by the defendants Frank Visser and Emma Visser. The plaintiffs and Arthur Williams, now deceased, were brothers, and the defendants Ann Jones and John H. Jones are the residuary legatees of the estate of Arthur Williams, deceased, and as such claim an interest in the note and mortgage in question. The complaint alleges that on June 6, 1919, for value received, the defendant Frank Visser and Emma Visser, his wife, executed and delivered to the plaintiffs and Arthur Williams their promissory note in the sum of $15,000, payable October 1, 1924; that as collateral security for said note Frank and Emma Visser executed and delivered to the plaintiffs and Arthur Williams a mortgage on certain real estate; that Arthur Williams died on June 8, 1920, being entitled, during his lifetime, to a right of survivorship, as joint tenant with plaintiffs in said note and mortgage; that he left a will, which has been duly probated, which, after providing for the payment of his debts and a small legacy, devises and bequeaths all of his property to the defendants John H. and Ann Jones or the survivor of them; that the estate has been fully settled and the residue assigned to the defendants; that in the inventory of the estate there is listed as belonging to the estate an undivided onequarter interest in and to the said note and mortgage; that defendants claim to be the owners of an undivided one-quarter interest in the note and mortgage as such residuary legatees; that the rights, title, and interest of Arthur Williams in this note was extinguished by his death, and that his interest, not having been transferred by him during his lifetime, passed to his brothers on his death; that plaintiffs are now the sole own (Supreme Court of Wisconsin. Nov. 15, 1921.) Evidence 426-Tenancy in common 3-ers of the note and mortgage; and that a Circumstances considered in determining substantial controversy exists, entitling plainwhether mortgage creates joint tenancy or tiffs to ask for the relief prayed for in the tenancy in common. complaint. Whether a mortgage, joint in form, was intended to create a tenancy in common or a joint tenancy between the mortgagees, under St. 1919, §§ 2068, 2069, is governed by the intent of the parties, and this in each case may depend on the transactions involved and the nature of the subject-matter, and to determine this, surrounding facts and circumstances may be introduced in evidence. Defendants set forth in their answer that prior to the execution of the mortgage plaintiffs and Arthur Williams, who were brothlands described therein; that the executors ers, were owners as tenants in common of the of the estate of their father contracted for the conveyance thereof to defendants Visser, and an action was brought by plaintiffs and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Plaintiffs demurred to the answer on the ground that upon the face thereof it does not state facts sufficient to constitute a defense; they demurred to the counterclaim on the ground that it does not state facts sufficient to constitute a counterclaim. Arthur Williams to cancel such contract; the estate of Arthur Williams it was finally that such action was settled by a written adjudged and determined that defendants stipulation which provides for a further pay-Jones were the owners of this one-fourth inment on the purchase price, an increase interest, and that such interest was duly asinterest, the execution of a deed by plaintiffs signed and set over to them by the final judgand Arthur Williams to the purchaser, and ment of the court; that when the plaintiffs the execution by him of a note for the bal- were parties in interest in said proceedings ance of the purchase price, such note to be and actually appeared therein by filing obsecured by mortgage upon the lands, the note jections to the probate of the will, such to bear interest at 5 per cent., but as a part judgment of the county court of Columbia of such stipulation the plaintiff, William G. county is therefore conclusive and binding Williams, was to pay to the purchaser an upon them. As a counterclaim the defendamount equal to one-fourth of 1 per cent. ants allege all of the facts stated in the defor the time the mortgage was to run, so fensive part of the answer, and that, if the that as a result the amount which he would note and mortgage or the stipulation purreceive was actually less than that of the suant to which they were executed are not other brothers; that such stipulation and in present form capable of being construed the note and mortgage thereto were so exe- as creating a tenancy in common between cuted with the intent and understanding that plaintiffs and Arthur Williams, then that the interest of plaintiffs and Arthur Williams they should be reformed so as to express the in the latter would be of the same character, true intent and understanding of the parties nature, and extent as was their respective thereto. Relief was demanded on such couninterest in the land sold by them and de- terclaim. scriped in the mortgage, namely, an estate. In common; that up to the time the action in question was commenced plaintiffs so regarded the effect of the transaction and divided with defendant Jones the interest accruing and paid on the mortgage after Arthur Williams' death; that at the time the stipulation, note, and mortgage were executed plaintiffs and Arthur Williams were unfriendly, and he intended that they would not receive any of his property upon his death and had executed a will for the purpose of accomplishing such result; that it was the mutual intent, purpose, and understanding of the parties that upon the death of any of the plaintiffs the interest of such plaintiff should not pass to or vest in the survivors of Arthur Williams, and that upon the death of Arthur Williams his interest SIEBECKER, C. J. (after stating the should not vest in plaintiffs or any of them; that when Arthur Williams' will was offered facts as above). It is claimed by the plainfor probate plaintiffs at first objected there- tiffs that this note and mortgage given to to, but later abandoned such contest; that, the plaintiffs and Arthur Williams, being joint in form, must therefore be held as knowing that defendants Jones claimed a one-quarter interest in the mortgage, and creating a joint tenancy, and that the facts that it had been inventoried as part of the and circumstances of the transaction resultestate of Arthur Williams, plaintiffs suffered ing in their execution and delivery cannot be and permitted the probate of such estate to considered nor received in evidence as showproceed to final settlement with the allowing that the note and mortgage were intendance of inheritance taxes, fees, and expenses The demurrer to the answer was overruled by the court and sustained as to the counterclaim. Plaintiffs appeal from that portion of the order which overrules the demurrer to the answer. Respondents ask for a review of that part of the order which sustains the demurrer to the counterclaim. Lueck, Clark & Lueck, of Beaver Dam, for appellants. Grady & Farnsworth, of Portage, for respondents. ed to, and did in fact, create a tenancy in common between the plaintiffs and Arthur in amounts commensurate with and as reWilliams. This claim of the plaintiffs is quired on the basis of a valuation, including a one-fourth interest in such mortgage; that based on the Statutes (section 2068 and section 2069): through such silence and acquiescence plaintiffs caused and permitted defendants to ma- "All grants and devises of lands made to two terially alter their position to their preju- or more persons, except as provided in the foldice in reliance upon such one-fourth inter-lowing section, shall be construed to create esest; that for such reason plaintiffs are tates in common and not in joint tenancy, unestopped to question or assert title to "uch less expressly declared to be in joint tenancy." one-fourth interest. It is further alleged that upon proceedings duly and regularly had in the county court of Columbia county in the matter of Section 2068. "The preceding section shall not apply to mortgages, nor to devises or grants made in trust or made to executors or to husband and wife." Section 2069. (185 N.W.) It is urged that the common-law rule to whole mortgage that the mortgagees owned the effect that written instruments cannot be it in common, and that each mortgagee had contradicted, varied, or modified by parol evi- an undivided interest in proportion to his redence applies and governs in this case, and spective debt. To this proposition the court hence the facts and circumstances of the cites a number of cases on page 535 of 76 transaction resulting in the making, execu- Wis., on page 219 of 45 N. W. of the opinion tion, and delivery of these written instru- written for the court by Mr. Justice Taylor. ments cannot be considered in interpreting Among the cases thus cited by the court is them and in determining the nature and kind the case of Burnett v. Pratt, 22 Pick. (Mass.) of interest the plaintiffs and Arthur Williams 556. An examination of this case discloses had in them, and that, since they are in fact that it involved a consideration of the quesjoint in form, under the statutes above quot- tions presented on this appeal. The Massaed it must be held that the plaintiffs and chusetts statutes, which are in substance like Arthur Williams owned the note and mort- sections 2068 and 2069 of our statutes were gage as joint tenants, and upon the death involved in the decision. Since Burnett v. of Arthur Williams the plaintiffs became the Pratt was approved and followed in Farwell joint owners thereof by right of survivorship. v. Warren and the principles there enunIt is also contended that under the decisions ciated dealt with rights of parties like those of this court, since the covenants of these involved in the instant case, we deem it propinstruments are joint in form, the facts and er to refer to the reasons and grounds therecircumstances cannot be inquired into to in- in stated as declaratory of doctrines which terpret them, and that they must be held to we deem applicable to this case. It is there create a joint tenancy. The following cases declared: cited to our attention are much relied on by "A covenant with two or more persons conthe parties to sustain their respective claims: stitutes a joint obligation; and a conveyance Farr v. Trustees, 83 Wis. 446, 53 N. W. 738, in fee or in mortgage to several, at common 18 L. R. A. 249, 35 Am. St. Rep. 73; Fiedler law, creates a joint tenancy. But covenants v. Howard, 99 Wis. 388, 75 N. W. 163, 67 are to be construed with reference to the subAm. St. Rep. 865; Church v. Nash, 163 Wis.ject-matter upon which they are to operate, 424, 158 N. W. 89; Dupont v. Jonet, 165 Wis. 554, 162 N. W. 664; Farwell v. Warren, 76 Wis. 527, 45 N. W. 217. and where the interests of the covenantees are several, the covenant, though in form joint, shall be construed to be several. "Every written agreement should be construed with reference to the nature of the transaction between the parties and to the objeots which they appear to have in view. * * * * If a mortgage be given to secure a joint debt, it shall be so construed as to create a joint estate, notwithstanding the provisions of our statutes. But if a mortgage be given to two or more persons to secure their several debts, the obvious purpose of the parties must be, to give to each, security for his particular debt." An examination of these cases discloses that this court has not declared that the facts and circumstances of the transactions involved in the making and execution of the written instruments respectively involved in each of these cases cannot be taken into consideration in interpreting the instruments. But it does appear in each of these cases that the facts and circumstances involved in the transactions that led to the execution of the respective writings were brought to the attention of the court, and that they were This doctrine as quoted was sustained in taken into consideration in the decisions. An the common law, as pointed out in the Burexamination of the cases of Farr v. Trustees, nett Case. In the recent case of Park v. Fiedler v. Howard, Church v. Nash, and Du- Parker, 216 Mass. 405, 103 N. E. 936, the pont v. Jonet shows that the joint covenants court re-examined the subject, and the docthere involved, when interpreted in the light trine of the Burnett Case is adhered to. We of the subject-matter upon which they op- consider that the observations of the Massaerated, with reference to the nature of the chusetts court are pertinent and applicable transactions between the parties, were in- in interpreting instruments within the protended to be joint covenants as held by the visions of sections 2068 and 2069, Statutes. court. In the case of Farwell v. Warren, It is considered that the circuit court prop76 Wis. 527, 45 N. W. 217, where a chattel erly held that a mortgage given under the mortgage was given joint in form to secure facts and circumstances alleged in the anthe separate indebtedness of the mortgagor swer makes it proper to consider such facts to each mortgagee, it was held that the mort- and circumstances to show the intent of the gagees took as tenants in common of the parties. The statutes leave open to inquiry property, each having an undivided interest in each particular case what the intent of in the property to the amount of his claim. the parties is, and the rights of the parties It was there urged upon the court that, since are to be governed by the transactions inthe mortgage was in form joint, the mortga- volved and the nature of the subject-matter gees had a joint interest therein, but the upon which they operate. It must be held court held that, although the form of the that the circuit court properly overruled mortgage was joint, it was clear from the plaintiff's demurrer to defendant's answer, |
