Castello v. Landwehr

28 Wis. 522 | Wis. | 1871

Lyon, J.

The plaintiff is the administratrix of the estate, and the widow, of Patrick Castello, deceased. It appears that the deceased was the bridge-tender of a bridge across Eox river at Wrightstown, in the county of Brown. The bridge was constructed with a draw, and he was employed by the town of Wrightstown to open the same for the pa-ssage of boats navigating that stream. On some day in the fall of 1869, he opened the draw for the passage down the river of the steamer “Morning Star,” which was then owned and operated by the defendants. The boat, in making the passage through the opening in the bridge, ran against the draw, knocked it down, and also knocked down the portions of the bridge or draw known as the cross-beam and shears. The deceased, who was trying to escape, .seems to have been struck by some of the falling timbers. At least he fell amongst those timbers, and one piece was lying across some part of his person. He became insensible almost immediately, and, although no blood or bruises were seen upon his body, he died in about three-fourths of an hour after the accident. No post mortem examination of his body was made, and no surgeon was examined as a witness upon the trial. This action was brought under the provisions of the Revised Statutes, chap. 135, secs. 12 and 13, to recover damages for the pecuniary injury resulting to the next of kin of the deceased by reason of his death; and the complaint states facts sufficient to constitute a cause of action. The plaintiff had a verdict for $1,500 damages, for which sum and costs judgment was duly entered in her favor; and from such judgment the defendants have appealed to this court.

At the close of the testimony introduced by the plaintiff upon the trial, and after she had rested her case, the defendants moved for a nonsuit on the following grounds :

“1st. The plaintiffs have failed to show any negligence on the part of the defendants or their agents or servants.”

“2nd. The plaintiffs have failed to show that the death of Castello was the result of the defendants’ acts.”

“3d. There is no proof before the court that the town of Wrightstown had authority to build a bridge across the Eox River, a navigable stream, or, if they had such authority, that the bridge was built according to law.”

“4th. That from plaintiff’s proofs it appears that Oastello was employed by the town to tend the bridge, and that the town of Wrightstown was guilty of negligence in not driving piles to protect the draw.”

The motion for a nonsuit was overruled by the court; was renewed after all of the testimony had been put in on both sides; and was again overruled; and due exceptions were taken to such rulings. Was this error?

We will examine in their order the several grounds upon which the motions for a nonsuit were based.

1st. There was testimony to the effect that the “ Morning Star ” was a small boat, and easily managed, and that the bridge in question was not a difficult one to pass ; that the captain of the boat, who was at the wheel when the accident occurred, was almost entirely unacquainted with the river — indeed, that this was his first trip thereon ; that he approached the bridge or draw horn the wrong direction, that is, diagonally from the west side of the river, the draw being near the east end of the bridge ; that the usual and only safe way of running through the draw or opening in the bridge, is to run to it in a straight line on the east side of the river; and that it was apparent to persons on the boat and on shore, when she was yet some distance therefrom, that she could not clear the draw.

We think tMs testimony tends to show negligence on the part of the defendants, and on the part of the captain of the boat, for whose negligence the defendants, who employed him, and who owned and operated the boat, are legally liable; and therefore, that the court properly refused to nonsuit the plaintiff upon that ground.

2d. The testimony tended to prove the facts above stated in relation to the cause and manner of Castello’s death; and there was, clearly, sufficient evidence tending to show that his death was caused by the collision of the boat with the bridge, tomate it the duty of ■ the circuit court to submit to the jury the question as to whether the death was thereby caused.

8d. Chapter 237, Laws of 1864, authorizes the town of Wrightstown to purchase the bridge in question, to issue bonds therefor, and to levy taxes to pay the same. This act is a legislative recognition of the legality of the bridge and the right of the town to maintain it. This is a public act, and the court properly took judicial notice of its existence, without the same being pleaded or proved. State ex rel. Cothren v. Lean, 9 Wis., 279; Clark v. Janesville, 10 id., 136; Rochester v. Alfred Bank, 13 id., 432; Berliner v. Waterloo, 14 id., 378.

This ground of the motion for a nonsuit was, therefore,' properly overruled, inasmuch as it was based upon the erroneous hypothesis that the act of 1864 was a private act, and that, to be available for the purpose of showing that the bridge was a lawful structure, it should have been pleaded and proved.

4th. If we concede, for the purpose of the argument, that the plaintiff cannot recover in case the town was guilty of negligence (a point which we do not here decide), then we are of the opinion that it was a question of fact for the jury, whether, under all of the circumstances, the omission of the town to protect the draw by putting in suitable piles for that purpose, was or was not negligence on the part of the town, and that the circuit court was correct in refusing to hold, as a proposition of law, that such omission was negligence.

It is doubtless true, that where the facts hearing upon it are all conceded, the question of negligence is one of law, to he determined by the court. But in this case there are many things to be considered in determining whether the town was negligent; such as the force and direction of the current; the effect of the wind thereon; the position of the- draw with reference to the channel: the facility with which boats could safely make the passage through the draw. These, and other facts which it is not necessary to enumerate, were to be deter-, mined before the court could properly hold that the failure thus to protect the draw was negligence.

The testimony on some of these subjects was conflicting, and the facts could only be settled and determined by the jury.

We conclude, therefore, that the motions for a nonsuit were properly overruled by the circuit, court.

The remaining questions presented by this appeal arise upon the refusal of the court to give certain instructions to the jury as requested by the defendants, and on certain other instructions given at the request of the plaintiff. Some of these questions have already been discussed, and will require but a passing notice.

The following are the instructions which were asked on behalf of the defendants, and which the court refused to give. They will be stated and commented upon in their order:

1st. “If the drawbridge might have been secured by means of piles or other safeguards, so as to prevent the shoving off of the same, and if said drawbridge was shoved off for want of such piles or- safeguards, and if the authorities of Wrightstown, owning and controlling said bridge, neglected to providethe same, it was such negligence as prevents a recovery in this action.”

This instruction was properly refused. We have already seen that the most the defendants were entitled to, was to have the question submitted to the jury, whether, in view of all thej facts, the omission of the town to put in piles and safeguards to protect the draw was negligence.

2d. “ That it was the duty of the authorities of Wrights-town, when authorized by law, to provide a safe and easy passage through said drawbridge. The right of navigating a public stream is paramount to the right of bridging the same. If the bridge was in the way of the safe and easy navigation of the said stream, the bridge must give way to the public right of the free navigation of the river in question.”

This instruction asserts certain abstract propositions, the correctness of some of which, as legal propositions, may well be doubted. It was not error to refuse it.

3d. If the authorities of Wrightstown, in repairing said bridge, after the same had been damaged, as testified to in this case, did place the piles and safeguards to prevent the throwing off of said drawbridge, it may be considered by the jury as evidence that the same was neglected to be done before, and was a needed and proper proceeding on the part of said town to make said drawbridge safe and secure.”

The purport of this instruction is, that inasmuch as the town placed piles and safeguards to protect the draw after Castello was killed, that was a fact from which the jury were at liberty to infer that the town was guilty of negligence in not placing them there before the accident. It is perfectly clear that no such inference can properly be drawn therefrom. If the fact admitted of such an inference, then the fact that a person at a certain time commences using and exercising extraordinary care in a given case may be used against him to prove that before such time he had failed to use reasonable and ordinary care.

4th. “ That death as the result of a blow or fall'is a question of fact. If there were no visible injuries on the person of the deceased Gastello, and no medical testimony showing the cause of said Castello’s death, except that he fell on the bridge, and some timber fell on his feet, it is no sufficient evidence that death was caused by the acts of the defendants. If Gastello .died then and there of mere flight, heart disease, or any sudden ailment of the body, the defendants are not liable therefor; and it is part of the plaintiffs case to show the real canse of Castello’s death.”

"We have already held that there was sufficient evidence upon which to submit it to the jury, as a question of fact, whether the death of Gastello was caused by the collision of the “ Morning Star” with the bridge, or otherwise. Had this instruction been given, it would have been equivalent to directing the jury to find for the defendant, because of the failure of the plaintiff to produce any evidence tending to show that the death of Gas-tello was caused by such collision.

5th. “ That the Fox River is a navigable stream, and cannot be bridged without the consent of the legislature of this state, and then only in the manner provided by law. It does not appear in this case that the bridge erected at the point on Fox River where it is claimed that this accident happened, was built by lawful authority; therefore the defendants were not bound to take any care to run in any particular channel, or to avoid striking the bridge found there. If defendants did with their boat come in collision with said bridge, and • did damage the bridge or draw in question, still the plaintiff cannot recover, because the said bridge was an unlawful obstruction to the free and full navigation of said river; and if he, Gastello, met his death while engaged in an unlawful business, and as an agent of the authorities maintained the unlawful obstruction, the plaintiff cannot recover, and your verdict must be for the defendants. ”

This instruction is erroneous in at least one particular, and was therefore properly refused. It asks the court to say to the jury that “ it does not appear in this case that the bridge erected at the point on Fox river where it is claimed this accident happened, was built by lawful authority. ” We have already seen that the bridge was a lawful structure ; and as the statute (Laws of 1868, chap. 101) required the judge to give or refuse the instructions as a whole, and deprived him of the power to modify it, orto eliminate the objectionable parts, it was not error to refuse the whole instruction. We do not pass upon the balance of the instruction. One erroneous proposition in it is fatal to it, and it is unnecessary to examine it farther.

We fail, therefore, to find any error in the refusal of the circuit court to give the instructions asked on behalf of the defendants.

The instructions giyen at the request of the plaintiff, and ■which counsel for defendants contend are erroneous, are as follows:

“ 8th. If you find for the plaintiff, in assessing her damages, you must consider the value of the support and protection of the plaintiff by her husband during the time which he would probably have lived and supported and provided for her, but for his death from the acts of the defendants.”

9th. In case you find for the plaintiff, in assessing her damages, you are not limited to the simple value of the support and protection of herself and the support and education of her children, but you may also consider the increase that the earnings of Castello would have made to his wealth and property, had he continued to live, and the reasonable expectation which the plaintiff had of pecuniary advantage by ultimately receiving a share of such earnings, as one of his heirs or next of kin, and damage may be given in respect to that expectation being disappointed and the probable pecuniary loss resulting therefrom. But you must be satisfied that pecuniary injury will probably result as the proximate damages of such death.”

“ 10th. The defendants and their captain were bound to use reasonable skill and care in passing through the draw, whatsoever its width. Even though the draw was constructed so as to make the bridge a nuisance, the defendants had no right to run into the bridge negligently or unskillfully.”

The rule of damages given in these instructions seems to be in accordance with that laid down by this court in Potter v. The Chicago and Northwestern R’y Co., 21 Wis., 372; Same case, 22 id., 615.

The damages awarded by the jury were not excessive. From the facts of this case, as established by the evidence, the jury might well find that the pecuniary damage which the plaintiff had sustained, and which it was reasonably probable she would sustain, by reason of the untimely death of her husband, was $1,500.

Neither do we find any error in the last instruction. The deceased was lawfully engaged in a lawful employment, and the captain of the boat was under legal obligation to use reasonable and ordinary care to avoid the accident which the jury have found caused his death.

Failing to find any error in the rulings and decisions of the circuit court, we must affirm the judgment.

By the Court. — Judgment affirmed.