Haas v. Chicago & Northwestern Railway Co.
41 Wis. 44
Wis.
1876
Check Treatment
Ryan, C. J".

The evidence amply sustains the negligence of the appellant in running its train at a reckless speed across traveled streets of the city, in violation of the statute. The statute was passed in favorem vites, and a strict observance of it is essential to public welfare. This court has repeatedly given it construction and enforced it. Langhoff v. Railway Co., 19 Wis., 489; Martin v. Railroad Co., 23 id., 437; Horn v. Railway Co., 38 id., 463; Ewen v. Railway Co., id., 613. We wish that we could so emphasize it as to induce railway companies to prevent, or public officer’s to prosecute, criminal disregard of its wise and humane provisions, by persons in charge of running trains. It is the duty of such persons |to obey the law implicitly and strictly. It is not for them to speculate when the law may be safely disobeyed; or when, as in this case, the violation of the law may be safely continued, in the presence of danger. If railway authorities will not enforce the duty of these men, in this regard, the conviction and punishment of some of them for manslaughter might teach others a salutary and needed lesson. The negligence of the appellant’s servants in this case was so gross that we are very reluctant to disturb the judgment.

But it is impossible to sustain it. The evidence on both sides tended strongly to show contributory negligence on ilhe part of the deceased. The cause will probably be tried again; and new evidence may vary1 or qualify the facts. We therefore refrain from ruling, on this appeal, whether or not the evidence appears to us sufficient to establish contributory negligence as matter of law for (the court. Langhoff v. Railway Co., 23 Wis., 43; Delaney v. Railway Co., 33 id., 67; Jalie v. Cardinal, 35 id., 118.

*51It appears that the deceased and another hoy saw the train approaching the street on which the deceased was killed, and ran towards the train for the purpose of crossing the track in front of it. The other boy appears to have reached the track a little in front of the deceased, and to have crossed, at fearful risk of his life, a very short distance in front of the engine. The deceased appears to have tried to do the same, and was killed. He was a hoy of nearly ten years of age; and the jury found that he was in a position to see the train, before he ran upon the track; and that he had sufficient intelligence to know the danger which he was incurring. And yet they found that, in the circumstances of the case, he could not have avoided the injury by the exercise of ordinary care and diligence.

We cannot but regard these findings as inconsistent with each other. There is nothing in the case tending to show any overruling necessity to the unfortunate boy to incur the fearful and fatal risk; nothing to show why he and his companion, one or both, could not have stopped and awaited the passing of the train. The attempt to cross appears to have been a wanton exposure of life to instant and terrible danger. And surely if the deceased had sufficient intelligence to comprehend the danger, as the jury found, he could have avoided it by the easiest exercise of ordinary care, by simply obeying the most natural instinct of any intelligent creature in the circumstances, by merely stopping in absolute security until the train had passed.

In the light of the evidence, we hold the two findings of the jury to be absolutely inconsistent; and that the verdict, taken altogether, did not warrant the judgment. Bach v. Parmely, 35 Wis., 238.

The judgment of the court below must therefore be reversed, and the cause remanded for a new trial.

By the Court. — So ordered.

*52Both parties moved for a rehearing.

In support of the appellant’s motion, its connsel argued that where the facts are found by sjiecial verdict, the trial court should enter judgment for the party entitled to it as matter of law; and that where there was no error prejudicial to the respondent in the rulings or instructions of the trial court, but it. rendered judgment on the special verdict for the wrong party, the appellate court may properly correct the error by directing the trial court to enter judgment for the appellant, and should always do so unless there is some defect in the verdict which makes it impossible to render judgment for either party, and so creates a necessity for a new trial. Stephens v. Cowan, 6 Watts, 513, and English authorities there cited; Brown v. Ferguson, 4 Leigh, 37, 56; Butler v. Hopper, 1 Wash. C. C., 499, 502; Pittsburgh etc. R. R. Co. v. Evans, 53 Pa. St., 250. When the facts touching a question of contributory negligence are all ascertained, it then becomes a mere conclusion of law. Such of the answers of the jury in this case as involved mere conclusions of law, should be rejected, and the trial court should be required to enter the judgment to which defendant is entitled upon the facts ap-]jearing clearly from the other findings of the jury. Hatfield v. Lockwood, 18 Iowa, 298-9; Pittsburgh etc. R. R. Co. v. Evans, and Butler v. Hopper, supra; Monkhouse v. Hay, 8 Price, 256. And it matters not what may be the opinion of the court upon the evidence itself, provided the findings of fact show contributory negligence, and there was sufficient evidence to take the questions of fact so found to the juiry. 2. In reply to the argument of respondent’s counsel for a rehearing, the appellant’s counsel further contended that it was clear from the evidence that the deceased not only could but did see the approaching train; but it is sufficient that he could see it, as the jury haye found. If it were found absolutely that he did not see th train, yet if he might have seen it by using his senses, he was guilty of contributory negli-*53geuce. Rothe v. Railway Co., 21 Wis., 256, and other cases cited in former brief.

The respondent’s counsel argued, 1. That if the two findings referred to in the opinion are inconsistent, then the special verdict is too defective to support a judgment for either party. 2. That the jury did not find that the deceased did see the train, and the fact that he eould have seen it if his attention had been called to it, but did not in fact see it, because of the absence of every signal of danger and the unlawful speed at which the train was running, is not inconsistent with the other fact found, viz., that he could not, with the ordinary care and diligence required of such, an infant, have avoided the injury.

Both motions were denied.