185 Wis. 432 | Wis. | 1925
Lead Opinion
The evidence is undisputed that before the deceased reached the passing track she had an unobstructed view to the west along the track for several miles and such view she had continually from the passing track a distance of fifteen feet till she reached the main track. There is no evidence that her attention was by any cause diverted. The jury having found her negligent, such negligence must have consisted in a failure to look or listen, or .both. Does such failure under such circumstances amount to more than a slight want.of ordinary care? This court has answered the question so many times in the affirmative and given its reasons therefor that no more is now needed than to state that such answer is adhered to, and to refe*r to a few of the
The case of Gordon v. Ill. Cent. R. Co. 168 Wis. 244, 169 N. W. 570, is relied upon by plaintiff. That case has been distinguished so many times that it is needless to do so in this case further than to call attention to' the fact that plaintiff in the Gordon Case drove an automobile, while here the deceased walked. As stated in White v. M., St. P. & S. S. M. R. Co. 147 Wis. 141, 133 N. W. 148, in the case of a foot traveler the zone of danger is so narrow and it is so easy for the traveler to reach a place of safety or to remain there that no close comparison can be made between one traveling on foot and one driving a team or an automobile. In the latter cases the team or automobile may be moving as fast as the train and many things may affect the power to stop or speed up, not to speak of the attention that must be-given the team or automobile. The foot passenger has perfect and instinctive control of himself and can almost instantly step outside the zone of danger.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint upon the merits.
Dissenting Opinion
{dissenting). I think I must agree with the learned county judge who presided at the trial that this was a case for the jury. The negligence of the defendant is conceded, — its train was going at a speed of thirty miles per hour, two and one-half times the speed permitted by law.
The deceased was a woman sixty-eight years of age, unwieldy and limping, SO' that she could hobble along at a hitching gait of two miles per hour. She was infirm in
Now it is said by this court that the deceased was guilty of negligence that contributed to the injury and proximately caused her death as a matter of law. But the jury said her negligence was but slight, which would not defeat recovery. The trial court sustained the jury. This jury was composed of twelve men selected by jury commissioners appointed by the court for their special qualifications. The commissioners are required to select as jurors none but
“It seems hardly necessary at this late day to reiterate the rule that a jury’s conclusion, especially upon such a question as negligence, cannot be disturbed by this court if there be any credible evidence, which, in its most favorable view, to any reasonable mind, can support the conclusion reached. A conclusion of negligence, of course, involves a comparison of the conduct under consideration with the conduct of the great mass of mankind under like circumstances. This standard must rest in the experience and observation of the individual or individuals who are to make the comparison, and in the'ordinary affairs of life it is beyond question that men selected from the various professions and employments of life to sit upon juries are quite as able to correctly form and apply that standard as are men whose experience is confined to a single profession.” Warden v. Miller, 112 Wis. 67, 87 N. W. 828.
Juries are not confined to the evidence — they may consider those things of common knowledge. They would know a good deal about old ladies living a life of toil; they would know about how they would act under certain conditions of great peril. And this jury had a right to assume, as I think they did, that this old lady, with halting step, was finding her way carefully along, not expecting a train, and came on the passing track in a moment of mental aberration, when she suddenly became aware of the approach of the train and was momentarily confused, and ran the wrong way. A person in peril is not expected to exercise calm judgment. Negligence is the failure to use the care that the great mass of mankind would use under the same or similar circumstances. And this is the peculiar attribute of the
At any rate, I think this decrepit old lady was doing the best she knew how to get safely along. She wasn’t desiring a tragic death, and so I believe she was exercising the care that the majority of old ladies in her condition would exercise under similar conditions.
At one time slight negligence in such a case, on the part of the victim, would defeat recovery. This was too much emphasized by courts, so finally the legislature enacted sec. 192.27, Stats., to the effect that slight want of ordinary care should not bar recover}?-. Following this act, this court, in Gordon v. Ill. Cent. R. Co. 168 Wis. 244, 169 N. W. 570, very properly said:
“It is evident the legislature has now marked out a limited field within the field of what formerly was and still is recognized as that of ‘ordinary care’ and designated the smaller field as that which covers situations where the triers of fact can say that, though there was a want of care, yet it was not more than a slight want of the ordinary care required and expected of the great mass of mankind under similar circumstances. It is a field as to which we shall not attempt the impossible task of offering any formula which will exactly define and prescribe its boundaries, but it must be left, like so many other questions that arise, to the good sense and judgment of those representatives of the great mass of mankind, the petit jurors.”
In that case plaintiff recovered under circumstances less favorable to plaintiff than here, it seems to-me. I think this
For these reasons I respectfully dissent.