144 Wis. 545 | Wis. | 1911
Lead Opinion
The following opinion was filed December 6, 1910:
In this case the jury found the decedent and the defendant each guilty of negligence contributing to cause death, and that the negligence for which the defendant was responsible was greater than that of the decedent and contrib
As we look at the facts neither of these contentions can be upheld. On a very dark, foggy morning on September 12, 1908, the decedent,' section foreman for defendant, started out at 7 o’clock with another sectionman on his handcar bound west from Sherwood station to a point called TTigh Cliff Junction, about one and one-half miles distant. Between Sherwood and High Cliff and a mile west of Sherwood there is a whistling post for that station; a quarter of a mile further west a highway crossing. The first regular train from the west was due at Sherwood at 7:42 o’clock that morning, and this would give the handcar time to reach High Cliff.. Decedent went on the handcar at the usual hour of going to work in the discharge of his duty, and he had on the handcar some tools and implements and lunch pails and proceeded at a moderate rate of speed without stopping until the moment of collision, but looking and listening for an approaching train. Irregular trains were liable to be sent over this road at any time. The sectionmen were requested to look out for all passing trains and were furnished with time-tables of regular trains. The collision was with an irregular train. The verdict of the jury that the deceased was guilty of lack of ordinary care which contributed to cause his death is well supported on this evidence, but there was nothing of extraordinary recklessness in going out to work on a very foggy morning in this way. At 6:50 o’clock there left Menasha, or Menasha Junction, eastbound, a locomotive engine and caboose which collided with this handcar at a point about 4,000 feet west of Sherwood. There was evidence tending to show
When there is a collision between two vehicles traveling in opposite directions on the same track and the ordinary negli-,, gence of the person in charge of each vehicle has caused the collision and one of such persons is injured or killed, the court must, notwithstanding subd. 5 of sec. 1816, Stats. (1898), as amended by ch. 254, Laws of 1907, when the point is properly raised, search the evidence and ascertain whether anything appears from which the jury would be authorized to find that the negligence of the injurer was greater and contributed in a greater degree to cause the injury than that of the injured servant. Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 119 N. W. 309, 120 N. W. 756. The same interpretation was given to a similar statute, sec. 2323, Stats. (1898), and cases in notes. In all cases in any wise doubtful the question should be submitted to the jury. Id.
In Zeratsky v. C., M. & St. P. R. Co. 141 Wis. 423, 123 N. W. 904, it is recognized that the question whether the negligence of the injured was slighter than that of the injurer may be a question of fact or one of law. In case the evidence •on this point is uncontroverted and permits of only one inference, it is for the court to decide this question. The respective negligences are not to be measured or compared merely by the old classification of slight, ordinary, and gross. In that case the plaintiff was a rear brakeman on a freight train and omitted a duty imposed upon him by rule of his employment to go back and signal any oncoming train whenever his freight train stopped on the main track. But his superior, upon whom the heavy responsibility of the care of life and property rested, the conductor who had charge of the train, had detached the locomotive, left the freight train, or part of it, standing on the main track, and departed for a station
In ascertaining whether the negligence of one is greater
By the Oourt. — Judgment reversed, and the cause remanded with directions to enter judgment for defendant.
The following opinion was filed January 6, 1911:
Dissenting Opinion
(dissenting). As I see this case duty compels me to dissent.
When two persons are negligent and injury to one proximately results from the combined negligence of both, it must
With this proposition I entirely agree, but I do not regard it as a complete statement of the legal principles which hear upon the questions in this case.
Negligence “is not a fact to be testified to, hut can only he inferred from the res gestee — from the facts given in evidence. Hence it may, in general, be said to he a conclusion of fact to be drawn by the jury under proper instructions from the court. It is always so where the facts, or rather the conclusion, is fairly debatable or rests in doubt.” Langhoff v. M. & P. du C. P. Co. 19 Wis. 489.
To draw this inference of fact from all the circumstances in evidence has been frequently said by this court to be “peculiarly the function of the jury.” Bohan v. M., L. S. & W. R. Co. 58 Wis. 30, 15 N. W. 801; Fitts v. Cream City R. Co. 59 Wis. 323, 18 N. W. 186.
It has been also called a mixed question of law and fact, which is never taken from the jury except in very clear cases. Pool v. C., M. & St. P. R. Co. 56 Wis. 227, 14 N. W. 46.
In the present case it seems to me there are unquestionably facts from which reasonable minds might draw different conclusions both as to the quantum of negligence on each side and as to the degree*in which such negligence proximately contributed to cause the injury.
The deceased and his comrades were going to their work as-, their duty required, and they were going in the way they were expected to go. The evidence tends to show that they were-proceeding slowly and carefully; their car was light and could be quickly stopped and lifted from the track out of danger ; they knew that no regular train was due; they also knew there were two or three highway crossings directly ahead of them as well as a station whistling post, and that any approaching locomotive was required to whistle at all of these-places.
On the other hand, the engineer of the approaching engine-knew that he was running wild; he knew, or should have known, that sectionmen would probably be on their way to work; he was driving his engine through the fog at a speed of
Grant that it must be said that the deceased and his colleagues were guilty of negligence, is there no room upon these facts for a reasonable mind to conclude that the negligence of the engineer was not only greater but contributed in a greater degree to the injury ? I think there is ample room for such a •conclusion, and so thinking I cannot agree with the result reached by the court in this case.
I am authorized to state that Mr. Justice Siebeckee agrees with the views expressed in this opinion.
A motion for a rehearing was denied January 31, 1911.