67 Wis. 46 | Wis. | 1886
From the course pursued by the learned circuit judge it is evident that he did not consider the fourth finding of the special verdict material in sustaining the plaintiff’s action. Had he considered it material, he would necessarily have ordered a new trial instead of entering a judgment in her favor, after setting aside the finding as unsupported by the evidence. ¥e will therefore first consider whether it was necessary for the-plaintiff, in order to recover in this action, to show that the injury which caused the death of her husband was the result of gross negligence on the part of the defendant, its employees, agents, or servants, or whether she may recover by showing that such injury occurred by a mere want of ordinary care on the part of the defendant, its employees, agents, or servants.
This raises the question whether a railroad company may, in cases where it agrees to transport passengers without compensation, lawfully contract with such persons so as to relieve itself from all liability for any .and all injuries which may be inflicted upon them by reason of any carelessness or negligence of its employees, agents, and servants, whatever may be the degree of such carelessness or negligence, or
By an examination of all the authorities cited by the learned counsel for the respective parties upon the argument of this case, as well as others not cited, we find that in England, Canada, New York, New Jersey, Connecticut, and West Yirginia the courts of those countries and states have held that a railroad company may, upon a proper consideration, lawfully contract to relieve itself for any and all negligence on the part of its servants, employees, and agents, without any regard to the degree of such negligence, and that such contract is not against public policy. These courts have therefore held that where the company agrees to carry a person without compensation, or in different manner and upon cars in which they do not usually carry passengers, the company may lawfully contract for exemption from all liability on account of the carelessness of its agents, servants, and employees. See the following cases cited by the learned counsel for the appellant: McCawley
The argument in favor of the rule established in the above cases is perhaps as well stated in the case last cited as in any other. The' court say: “By the rule of .respondeat superior a corporation is made liable for the negligence of its servants; but when the principal has done the best he could the rule is technical, harsh, and without any basis of inherent justice. As applicable to corporations, it is of great practical convenience and utility. We do not, therefore, advocate its abolition; but we contend that in a case like the present, where there is no actual fault on the part of the principal, it is reasonable in the eye of the law that the party for whose benefit the rule is given should be allowed to waive it in consideration of a free passage. It is not a case where a party stipulates for exemption from the legal conseguenees of his own negligence, but one where he merely stipulates against a liability for imputed negligence in regard to which there is no actual fault. It is easy to see, therefore, that considerations of public policy have no application to such a case. . . The foregoing reasoning, as it seems to us, will also furnish a complete answer to the claim that the defendant must be liable on account of the gross negligence of its servants, for it is manifest that the principal is no more culpable in 'the one case than in the other; and, the rule respondeat superior being waived, the protection is complete.”
There is another class of cases which hold that it is against public policy to allow a common carrier to contract to exempt itself from liability, either on account of the negligence of the corporation itself, or of its agents, servants, or employees, without regard to the degree of such negligence or carelessness. It will be found, by an examination of the large number of cases in which this rule is held, that they were cases arising out of the carriage of goods for hire, or where the-carriage of the passenger was for a consideration received either directly or indirectly by the carrier. The leading cases upon that subject are the cases of Railroad Co. v. Lockwood, 17 Wall. 357, and Railway Co. v. Stevens, 95 U. S. 655, and there are numerous decisions in the courts of the different states which are in accord with the rule established in these cases. The cases of P. & R. R. Co. v. Derby, 14 How. 486, and Stemboat “New World” v. King, 16 How. 469, are in harmony with the rule laid down in 17 Wall. In these cases, the passenger, it is true, was riding on a free pass, but there was no agreement that he should take the risks of accident in consideration of his receiving such pass. The court very properly held that such passenger, in the absence of any special contract, was entitled to the same protection as one
This court has approved of the rule stated by the court in Railroad Co. v. Lockwood, and has held that a carrier for hire cannot relieve himself from liability, even by special contract, for its own, or for the^negligence of its servants, so far as the carriage of freight is concerned, or for doing any other act as a common carrier other than the carriage of passengers. See Thompson v. W. U. Tel. Co. 64 Wis. 531, 536; Candee v. W. U. Tel. Co. 34 Wis. 471; Hibbard v. W. U. Tel. Co. 33 Wis. 558. We see no good reason why the same rule should not be applied to the case of the transportation of a passenger for hire. We think, as is said by the supreme court of the United States, “ that it is not just or reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibiliy for the negligence of himself or his servants.” 17 Wall. 384. But we are also of the opinion that the general rule so laid down must be limited to a case in which the carrier is a carrier for hire, and not when the carriage is gratuitous. The only cases to which we have been cited, or which we are able to find, in which that rule has been .applied to the case of a gratuitous carriage, are the following: Penn. R. Co. v. Butler, 57 Pa. St. 335; M. & O. R. Co. v. Hopkins, 41 Ala. 486, 503; O. & M. R. Co. v. Selby, 47 Ind. 471; Jacobus v. St. P. & C. R. Co. 20 Minn. 125. It will be seen, however, by an examination of this last case, that the only question presented to the court for its decision was whether the defendant company was liable for the gross negligence of its servants. The case of Rose v. Des M. Valley R. Co. 39 Iowa,
This court has not adopted the rule laid down by the courts of England, New York, Connecticut, New Jersey, and West Yirginia; nor has it adopted the broad rule of the courts of Pennsylvania, Alabama, Indiana, and Minnesota, that all contracts exempting the carrier from liability on account of the negligence of itself or of its employees and agents are void as against public policy. In the case of Betts v. Farmers' L. & T. Co. 21 Wis. 80, the rule of the New York and English cases was adopted, so far as it concerned the carriage of live-stock, on the ground that it was questionable whether, in the absence of a statute compelling the carrier to do so, he could be compelled to receive and transport that kind of property; but the court expressly say: “We intimate no opinion as to whether it is or is not competent for a common carrier to make similar stipulations with regard to other kinds of property, or so as to protect himself against loss or damage for his own negligence, or the negligence or omissions of his agents or servants.” This rule, as regards live-stock, has been perhaps modified by this court — at least it does not seem to have been followed — in Morrison v. P. & C. Const. Co. 44 Wis. 405; and its authority is questioned in Richardson v. C. & N. W. R. Co. 61 Wis. 596.
The rule laid down in Railroad Co. v. Lockwood has been, to some extent, approved by this court in the cases of Morrison v. P. & C. Const. Co. 44 Wis. 405; Black v. Goodrich Transp. Co. 55 Wis. 319; Richardson v. C. & N. W. R. Co. 61 Wis. 596; Lawson v. C., St. P., M. & O. R. Co. 64 Wis. 447, 455. In the case of Morrison v. P. & C. Const. Co. supra, it seems to have been held that the carrier was liable to the
There is another class of cases which hold that, in the case of a passenger who is carried gratuitously by a common carrier, the carrier may, by express contract, relieve himself for the mere neglect or want of ordinary care on the part of the carrier or of his servants and employees; but that he cannot relieve himself from liability for gross negligence on his part or on the’ part of his servants and employees. Although this court has not expressly adopted this rule in a case of the kind at bar^ yet it has been stated in several of the opinions in the cases above cited (see Black v. Goodrich Transp. Co., Lawson v. C., St. P., M. & O. R. Co., and Richardson v. C. & N. W. R. Co., supra) that the carrier cannot by contract relief itself from liability for such gross negligence, either of itself or its agents and servants.
In Ill. Cent. R. Co. v. Read, 31 Ill. 484, which was a case for an injui’y received by a passenger riding upon a free pass, and upon a contract ’in all respects like the one in the case at bar, after a very elaborate argument of the case by counsel, and a carefully considered opinion by the court, it was held “ that the agreement did not exempt the railroad company from the gross negligence of its employees, and that it does exempt it from all other species or degrees of negligence not denominated gross, or which have the character of recklessness. For such unavoidable accidents as will happen by the best managed railroad trains this agreement would be a perfect immunity to the company.”
In the case of Ill. Cent. R. Co. v. Morrison, 19 Ill. 136, it was said “ that railroads have the right to restrict their
The same rule, but perhaps still more restricted, is adopted by the supreme court of Georgia in W. & A. R. Co. v. Bishop, 50 Ga. 465, 473. This case was a case of an employee of the company who had entered into an agreement to take upon himself all the risks of his position, and that he would in no case hold the company liable for any damage he might sustain by accidents or collisions on the trains or road, or which might result from the negligence or carelessness or misconduct of other employees or persons connected with such road, or in the service of the company. The court say: “ We recognize one limitation to this agreement, and that is the limitation the law puts upon all contracts. No man can stipulate for immunity in case he should do an act that is a crime. No contract is a good one that is in violation of law, that which the law forbids, or which is against good morals, or contrary to public policy. Nothing in this contract can therefore protect the company when the negligence which has caused the damage is a crime,— when it comes within that kind of negligence which is called, in sec. 4291 of the Code, criminal negligence, reckless of human safety and human life. That sort of negligence is forbidden by law, and punishable by law as penal. It is contrary to good morals and to public policy as declared
We can see no good reason why the person who seeks a gratuitous caraiage from a railroad company should stand in the same position to the carrier as the person who pays for his transportation- and therefore forces the carrier to assume all the duties of such carrier. The carrier is in no case under obligation of law to carry a person gratuitously, as he is when he is tendered his proper compensation, and he does not, therefore, owe the same duty to the person carried gratuitously that he does to the person who pays for his carriage, unless he chooses to accept such duty by not stipulating against assuming it. • Nor does it appear to us to be contrary to public policy or to good morals for the carrier to stipulate with the person who desires a gratuitous transportation that he shall assume, the ordinary risks of accident which may occur through the want of ordinary care on the part of the servants of the company. So long as the carrier does not attempt to excuse himself from that recklessness of his servants -which is dangerous to human life, or is punishable by law, or inconsistent with good morals, it does not seem to us that he is violating any rule of law, or that he is acting against public policy. The argument of the English courts, and the courts of New York, New Jersey, and Connecticut, -when limited as above stated, seems to us unanswerable. We are also of the opinion that the carrier cannot stipulate against any negligence of his servants or agents which is expressly made a crime, and punishable by law, even though such negligence may not be of that degree which is .denominated gross carelessness or recklessness. See secs. 4357, 4358, 4363, 4367, 4392, and 4393, E. S.
We think that a railroad company, when carrying a passenger gratuitously, is in a condition analogous to the
As we hold the contract made by the railroad company with the deceased was effective to relieve the company from liability for any- damage to him by reason of a want of ordinary care on the part of its servants and employees unless it was caused by some criminal act of such servants or employees, it becomes necessary for the plaintiff to show by th.e evidence that the death of the deceased was caused by reason of the gross carelessness of such agents and servants. It is clear, therefore, that the circuit judge erred in entering judgment on the special verdict as amended by him, and should, in his view of the evidence, upon the question of gross neglect of the employees and servants of the defendant, have ordered a new trial.
We are of the opinion that the practice of the circuit court in this case ought not to prevail, and that, in all cases where the circuit court undertakes to set aside a special finding in a special verdict, a new trial should be ordered, unless it clearly appears that the finding is wholly imma
We are all of the opinion that, upon the whole evidence in the case, the question of the gross negligence of the employees of the defendant in this case was clearly a question for the jury, and that the circuit judge erred in setting it aside as unsupported by the evidence.. The mistake of the learned judge was in holding that there was no sufficient evidence of the gross misconduct o'f the employees of the company, and in holding that the” gross negligence found by the jury was based solely on the-fact that the jury found that the men on the engine could have seen the stalled train in time to have stopped before running into it. "Whether they could or could not see was not conclusive as to the question of their gross negligence. The very fact, if it was a fact, that they could not see, might tend to show gross carelessness in not stopping the train before running into it. If they could not- see it, and they had no definite knowledge as to the exact location of it, it was evidence tending to show gross negligence not to stop the train before striking, or, at all events, in not slackening speed so as not to endanger the lives of those on the stalled train before running into it. That there was sufficient evidence to go to the jury on the question of gross negligence it seems to us is very clear. See Comm. v. V. & M. R. Co. 108 Mass. 7, 12; Lawson v. C., St. P., M. & O. R. Co. 64 Wis. 447, 458; Moseley v. Nacoochee, 28 Fed. Rep. 462, 467.
The case m 108 Mass; was an action to recover under the provisions of sec. 97 of ch. 63 of the General Laws of that state, which provides as follows: “ If, by reason of the negligence or carelessness of a corporation, or of the unfitness or gross negligence of its servants or agents, ’the life of any person, being a passenger, is lost, the corporation shall be punished by a fine not exceeding' $5,000, nor less than $500, to be recovered by indictment,” etc. The only evidence in
It is alleged as error that the plaintiff was allowed to show on the trial that she had no means of support except what her husband had furnished her. We think that fact was a proper matter of proof, It tended directly to show that she had suffered a pecuniary loss by the death of her husband.
The second error assigned is the admission of "the evidence of the witness Loper as to what one of the train-men said to him at the time of the accident about the speed at which the engine and snow-plo w were running. This evidence should perhaps have been excluded; but its admission has not prejudiced the defendant, as the verdict of the jury as to the speed of the train is very clearly not based upon it. The witness testified that the train-man told him they were running at the rate of twenty-five or thirty miles an hour.
Third, it is urged that the verdict is so indefinite that no judgment can properly be rendered upon it. We are not able to find anything uncertain or indefinite in the verdict, and it is quite sufficient to sustain a judgment against the defendant.
The objection that the rate of speed found by the jury is wholly unsupported by the evidence is clearly not well taken.
Eifth, it is urged that the $2,500 -damages, for which judgment was taken, is excessive. The deceased was fifty-five years old. Though not a robust man, he was in fair health,- — a workman who could earn $2.25, working ten hours per day, and at that rate for less time. His family were, to a large extent, dependent upon his labor for their support. We cannot say, as a matter of law, that his life was not worth the sum of $2,500" to his widow. As compared with other verdicts which have been sustained by this court, it is clearly not excessive. Johnson v. C. & N. W. R. Co. 64 Wis. 425; Schrier v. M., L. S. & W. R. Co. 65 Wis. 457; Lawson v. C., St. P., M. & O. R. Co. 64 Wis. 447.
We find nothing in the instructions to the jury which are objectionable, except the following sentences: “ Gross negligence is often defined to be the want of extraordinary care; ordinary negligence being the want of such care as men of prudence qxercise in their own affairs. There are men that are extraordinarily careful and prudent much beyond the average. Gross negligence is the want of such extraordinary care as men of that class usually exercise.” To this last sentence the defendant duly excepted. It is quite apparent that the learned judge clearly misstated the law, and gave a definition of gross negligence which is contrary to all au
By the Oourt.— The judgment of the circuit court is affirmed.
