122 Wis. 423 | Wis. | 1904
The following opinion was filed June 10, 1904:
The verdict of the jury eliminated from the-case the claim of negligence in failing to discover the condition of the defective coupling, thus leaving the failure to discover the fact that the train had parted as the only ground of negligence upon which the judgment can rest, and the appellant’s main contention is that this latter ground of negligence-is unsupported by the evidence.
There is little dispute in the evidence bearing on this question. The train in question was composed of forty-seven freight cars besides the engine and tender and the passenger coach and caboose, making its entire length over one third of a mile. The passenger coach was next to the caboose, and the coupling which broke was the coupling between the passenger coach and the box car immediately in' front of it. The spot where the break occurred' cannot be definitely ascertained, but it had occurred at some point before the train reached the Duplainvillo-crossing, because the evidence of the man in charge of the tower at that place is undisputed to the effect that the two
The man in charge of the interlocking switch tower testifies that he saw the train; that it was broken in two; that he does not believe he saw any man or light on the rear part, and that the only light he saw was from the windows of the caboose; that he immediately telegraphed to the agent at Brookfield, informing him of the break, and received a response from the agent at Brookfield in less than a minute. The agent at Brookfield gave the signal indicating a broken train when the engine was from fifteen to twenty-five oar lengths from the station, and (as it seems) after the collision had occurred. Certain rules of the company, which were introduced in evidence, provided for signals when a train has parted; also that engine men must look back frequently to see that all is right; that, if a train parts in motion, trainmen must use great care to prevent collision between the parts; that engineers must give the signal for train parted, and keep the forward part in motion until the detached portion is stopped; and that freight conductors and brakemen must be out of their trains, when approaching a station, at least one mile from the station. '
It goes without saying that a broken train in motion is both an abnormal and dangerous condition of things. The mere fact that a train is running through the country in this condition doubtless raises a presumption of negligence on the part of defendant, because, if the equipment and management of the train were perfect, such a state of things would not, in the ordinary course of events, be possible, except through the operation of some intervening cause. It is a case of res ipsa loquitur. This presumption may, of course, be rebutted and overcome by evidence showing that there was no negligence, and the question whether it has been overcome is the question to be considered.
The appellant’s second contention is that there was error in that part of the charge defining proximate cause. The court, after carefully instructing the jury that the plaintiff could not recover unless the negligence of the defendant’s employees was shown and also that such negligence was the proximate cause of the injury, defined proximate cause as follows :
“And by proximate cause I mean the efficient cause, that which produces the injuries complained of, and which, in the light of attending circustances, ought reasonably to have been foreseen by persons of ordinary intelligence and prudence.”
This definition is criticized in two respects, and with some reason. It is said that it leaves out the requirement that the injuries must be the natural and probable result, and that it makes the element of foresight apply to the cause, instead of the effect. Taking up the last contention first, it must be said that it appears somewhat hypercritical. It is true that the
“Tbe efficient cause; tbat which acts first and produces tbe injury as a natural and probable result, under such circumstances tbat be who is responsible for such cause as a person •of ordinary intelligence and prudence ought reasonably to foresee tbat personal injury to another may probably follow from such person’s conduct.”
Tbe ideas here expressed may doubtless be well expressed in other language, but no reason for material variation from •this definition is perceived, and we cannot too strongly urge ■upon trial courts tbat it be substantially or literally followed in personal injury cases.
Comparing tbe definition given by tbe court in this case with tbe definition just quoted, it will be seen tbat it varies therefrom in that tbe words which characterize tbe injury as a “natural and probable result” are omitted, and tbat it requires tbat not alone some injury, but the very injury which resulted, ought to bave been foreseen. As this last variation from tbe rule is favorable to tbe defendant, it is not error
•Another contention is made which requires attention. The-contract under which the plaintiff shipped his stock provided that he might accompany his stock upon the train, but that the defendant should in no event be liable for any personal injury to him upon defendant’s cars or road in an amount exceeding-$500. The trial court charged the jury, in effect, that this clause was ineffective and not to be considered by the jury,, and this ruling is attacked as erroneous. The plaintiff, though nominally traveling without payment of fare, was in fact -a passenger for hire, the agreement for his carriage being a part of the mutual agreement for the carriage of his stock for hire. New York C. R. Co. v. Lockwood, 17 Wall. 357; Davis v. C., M. & St. P. R. Co. 93 Wis. 470, 67 N. W. 16. Being
By the Court. — Judgment affirmed.
A motion for rebearing was denied September 27, 1904.