Boland v. Chicago & Northwestern Railway Co.

159 Wis. 609 | Wis. | 1915

SiebeckeR, J.

The defendant assigns error upon the action of the trial court holding that the evidence sustains the finding of defendant’s negligence, as alleged, by the jury, and that the evidence permitted an inference that if defendant was negligent as charged such negligence was the proximate cause of the alleged damage to the plaintiff's horses. We are of the opinion that the court erred in holding that there is evidence in the case tending to show that the alleged negligence of defendant’s servants in unreasonably delaying spotting of the car with plaintiff’s horses, after its arrival at An-tigo at 11:15 o’clock p. m. on the day in question, was the proximate cause of the injury and damage to plaintiff’s horses. It appears that when the train reached Antigo at 11:15 o’clock in the night the men in charge of the horses requested the foreman of the switch engine to have the car spotted immediately ; that he informed them that the car could not be spotted until after the next passenger train had passed, which would be sometime between 1 and 2 o’clock; that these men then made further effort to have the car spotted immediately, but did not succeed; that they left the yards to get a lunch, and on returning about one hour and a half after the train had arrived they again made request at the ticket office to have the car spotted and were directed to see another in charge of this operation; that their further effort in this regard failed; that they went to the car and found that the horses had become cold and were shivering and then closed the side doors of the car, which had been open on both sides about from a foot to a foot and a half. One of them remained in the car with the horses until morning, when they were unloaded between 5 and 6 o’clock. The ear was spotted ahout half past 3 o’clock, the passenger train passing at nine minutes after 3 o’clock. Assuming as a verity the finding of the jury that defendant’s servants negligently delayed the spotting of the car, the inquiry is, Does the evidence show with reasonable distinctness that such delay in spotting the car proximately caused the injury to plaintiff’s horses ? The evidence shows that the defendant performed its duty in having all trains from the north stop for inspection required under the federal law. Any train, while under inspection, is not to be broken up. It required. from forty to forty-five minutes to inspect this train. Tire caretakers of tbe plaintiff’s borses testify that they left the side doors of the car open when they left it to get a lunch and that the horses were cold and shivering when they returned after lunch, when they closed the doors- Common knowledge suggests and the opinion evidence' in the record accords with the fact that if plaintiff’s horses suffered from exposure on this trip it probably occurred within the time from the arrival at Antigo and the time the caretakers returned to the car after lunch while the car stood in the yards with the. side doors open. The caretakers had been told that the car would not be spotted until the next passenger had passed, sometime between 1 and 2 o’clock. The fact that defendant’s servants unjustifiably delayed spotting the car did not relieve the caretakers from performing their duties with reasonable care, and required of them, under the circumstances and notice of such delay before the ear would be spotted, to protect the horses from exposure from a change in temperature, so far as within their power. Admittedly they omitted closing the side doors, which obviously was the main cause in exposing the horses to the changed conditions of temperature and produced the cold and shivering condition of the horses which the caretakers noticed when they returned from lunch. It would be mere speculation and conjecture to attempt to differentiate in what degrees the delay of spotting the car and the conduct of the caretakers in exposing the horses to the coldness of the night by leaving the doors of the car open contributed to produce injuries to plaintiff’s horses of the nature here complained of. Under the state of the evidence the' plaintiff has not established with reasonable distinctness that defendant’s negligence was the proximate cause of the injuries complained of. The evidence leaves an answer to this question in the realms of conjecture and the jury’s findings upon the subject are not supported by facts warranting such inference with any reasonable certainty.

The evidence is also insufficient to sustain this finding of the jury on another phase of the case, namely, that the death of one horse and the foundered condition of the other were caused by exposure after their arrival in Antigo before they were unloaded from the car. The caretakers’ bare assertion that the horses took cold in the car is wholly unsupported by the facts and circumstances or expert knowledge on their part to show that they knew this fact. So far as the record shows it was a mere guess on their part. The evidence of other witnesses concerning the probable cause of the sick condition of these horses on the day after their arrival at Antigo leaves the matter in such doubt that no person can tell with any reasonable probability that their condition was caused by exposure in the car. The record is devoid of any evidentiary facts, or of opinions of the experts based on the facts in evidence, showing that exposure of the horses caused their sickness, and hence there is no evidence which reasonably permitted the jury to find that exposure on the trip caused the horses to become sick. The record shows that the ailments of these horses may have been due to causes wholly unconnected with defendant’s action in delaying spotting of this car. Under such a state of the case it is mrve speculation to attribute their condition to the defendant’s negligence. The court erred in submitting these issues to the jury. The defendant was entitled to judgment dismissing plaintiff’s complaint.

By the Court. — The judgment appealed from is reversed, and the cause remanded with direction to enter judgment dismissing plaintiff’s complaint.

Babxes, J., took no part.