| Wis. | Feb 1, 1910
Lead Opinion
The following opinion was filed February 1, 1910:
1. Appellant’s first contention is that verdict and judgment for the defendant should have been ordered
Again, it is asserted that the deceased was not in the line of his duty as an employee. His duty required him to ride in the engine from Weyauwega to Waupaca, and he was doing just that. He did not cease to be .acting in the line of his duty, within the meaning of our statutes, even if he performed some negligent act in the*fcourse of his conduct. Kunza v. C. & N. W. R. Co. 140 Wis. 440" court="Wis." date_filed="1909-10-26" href="https://app.midpage.ai/document/kunza-v-chicago--northwestern-railway-co-8189667?utm_source=webapp" opinion_id="8189667">140 Wis. 440, 123 N. W. 403. The evidence, instead of conclusively establishing that he was not in the line of his duty, we think was conclusive the other way..
Further, appellant contends that deceased co-operated and confederated with the engineer in the performance of the latter’s negligent act, which was the running of the train at an excessive and negligent speed. We have no doubt that if there had been affirmative agreement or even consent by the deceased, in advance, to such running, recovery would be prevented both under the rule volenti non fit injuria, and on the ground .of contributory negligence. We, however, find no evidence justifying more than a conjecture of any such fact The sum total of the evidence is that after engineer and fireman were in their places the engineer increased the speed of the engine to an excessive and negligent degree; that deceased did nothing except to call the engineer’s attention to the speed. From these facts there can be no legitimate inference that he either agreed with, or encouraged, the engineer to such negligence, or that he consented thereto at a time, when a protest could have been rendered effective by withdrawing himself from the danger.
The remaining basis for this general contention of appellant is that the deceased’s conduct was somehow in breach of divers and sundry rules of the company. We are cited to a half dozen rules addressed generally to all employees of the railroad company calling attention to the hazardous nature of their employment and their general duty to be careful both for themselves and for others, and duty of one who is employed over or with another to caution such other of risks which he is about to encounter. As counsel construes these rules, the business of railroading could hardly be carried on with a celerity equal to the ancient stage coach. If they have been promulgated by the company in the literal and extreme sense which they assume in court, the conclusion would be
2. Error is assigned upon tbe admission of evidence as to the generally weak and defective condition of tbe track at places in close proximity to tbat of derailment but not identical therewith. Doubtless it is true that existence of a specific defect in the track causing tbe injury is not legitimately proved by establishing defects elsewhere. But in this case was presented the question of the engineer’s negligence in running tbe train; tbat negligence was dependent upon all tbe surrounding facts and circumstances, among which would unquestionably be the condition of the track. The defects were all of a generally existing character, such as inferiority of ties, their insecurity in the ground, and loosened condition of tbe spikes, tbe last two of which at least were shown to result progressively from the operation of trains over the track. We think, therefore, the evidence was clearly admissible for some purpose and no error was committed in receiving it. Its effect might have been restrained by instructions to tbe jury had defendant so desired and requested. The same considerations apply to the admitted evidence of the recent running over tbe road of large engines; tbe excessive effect of such engines in producing or increasing the defects in the track above mentioned being made apparent.
3. Criticism is made of the phraseology of two or three-questions in the special verdict: first, as to the use óf the expression “reasonably proper care, test, or inspection,” instead of “ordinary care and prudence,” in discovering tbe defects in tlic track by the defendant. We think these expressions are-
4. Errors are assigned upon the refusal to submit by ver- ' diet certain questions requested by appellant. The first of these was whether deceased did “co-opérate with said engineer in the operation of said engine in a careless and negligent manner.” As we have said, we do not find any evidence from which, by legitimate inference, an affirmative answer to this question could have been reached. The second is: Did the deceased “approve of and acquiesce in the operation of said engine in a careless and negligent manner ? ” So far as this question is to be construed as referring to affirmative agreement or declared approval in advance, it must be controlled by the reasons just expressed as to the preceding one. So far as it relates to a mental state of tacit submission or acquiescence, it is not within any of the issues raised by the pleadings, but relates to a mere evidentiary fact bearing upon the negligence of deceased, a subject covered by a question duly submitted. Therefore its refusal was without error. Baxter v. C. & N. W. R. Co. 104 Wis. 307" court="Wis." date_filed="1899-10-20" href="https://app.midpage.ai/document/baxter-v-chicago--northwestern-railway-co-8186411?utm_source=webapp" opinion_id="8186411">104 Wis. 307, 313, 80 N. W. 644; Blankavag v. Badger B. & L. Co. 136 Wis. 380" court="Wis." date_filed="1908-09-29" href="https://app.midpage.ai/document/blankavag-v-badger-box--lumber-co-8189263?utm_source=webapp" opinion_id="8189263">136 Wis. 380, 386, 117 N. W. 852. Another question was requested submitting to the jury whether deceased’s “own slight want of ordinary care” contributed to produce the injury. The question in, fact submitted was whether “a want of ordinary care” so contributed. Of course the question submitted included that requested. A slight want of ordinary care is a want of ordinary care. Under the
5. Defendant requested many instructions and now assigns error upon the refusal of some of them. Several are for direction of answers to certain questions and are within the preceding discussion. With reference to contributory negligence, an instruction was requested that an affirmative answer be given if deceased unnecessarily and voluntarily exposed himself to a known danger. Refusal of this was proper for the reason, already stated, that there was no evidence that deceased had any means of escape after the danger was known, so that his exposure could not be either voluntary or unnecessary. Another instruction that certain acts of the ■deceased, some of which were in dispute, would necessitate an affirmative answer was properly refused: first, because it is not the duty of a trial court to select individual detail items of evidence and embody them in instructions (Sullivan v. Mauston M. Co. 123 "Wis. 360, 363, 101 N.W. 679" court="Wis." date_filed="1904-12-13" href="https://app.midpage.ai/document/sullivan-v-mauston-milling-co-8188071?utm_source=webapp" opinion_id="8188071">101 N. W. 679; Horr v. C. W. Howard Co. 126 Wis. 160" court="Wis." date_filed="1905-11-14" href="https://app.midpage.ai/document/horr-v-c-w-howard-co-8188321?utm_source=webapp" opinion_id="8188321">126 Wis. 160, 164, 105 N. W. 668); and secondly, because various of the acts therein referred to might or might not have been conclusive of negligence on decedent’s part according to- other circumstances and facts. Further, on the subject of contributory negligence an instruction was requested that “carelessness and negligence of deceased, no matter how slight,” if it directly caused, or ■contributed to, the accident, would necessitate an affirmative
6. Such of the errors assigned upon the portions of the charge in fact given as are sufficiently argued by appellant to entitle them to attention relate mostly to views of the evidence inconsistent with those entertained by appellant What we have said as to the evidence on the various subjects discussed will indicate that in the main we approve the court’s rather than the counsel’s view of the effect of the evidence introduced, and we may dismiss such assignments without further comment. We do not think any of them, except that as to damages, could have had any misleading effect on the jury or have affected the substantial rights of the defendant.
Error is also assigned upon the instruction given with reference to the damages, and refusal of a requested instruction substantially to the effect that the recovery should be by mathematical computation of the present value of an annuity to the amount of the deceased’s annual contributions during the probable life of the longest liver of the two parents. It was said in Rudiger v. C., St. P., M. & O. R. Co. 101 Wis. 292" court="Wis." date_filed="1898-11-22" href="https://app.midpage.ai/document/rudiger-v-chicago-st-paul-minneapolis--omaha-railway-co-8186084?utm_source=webapp" opinion_id="8186084">101 Wis. 292, 77 N. W. 169, that such computation marked the limit of the pecuniary injury in case of death of a husband by negligence, as contradistinguished from a multiplication of the annual contribution by the number of years’ expectancy of life of the
7r. Upon the question of damages, we are convinced that the jury exceeded any amount of pecuniary injury to- the parents which might result from the death of their adult son. It is found that his contribution had averaged $250 a year. But it also appeal’s without dispute that during all the time of such contributions he had received from his parents support as an inmate of their family; during most of the time complete support; and during, the two years of his- railroad service he had retained a room in their house and a home with them and had received his board when not actually out on the road, so it is obvious that his voluntary pecuniary contributions, over and above that which he had purchased by them, could not have exceeded $150 a year. An annuity to the mother, the younger of the two parents, who was fifty-one years old, would have been worth, according to the statutory method of computing the value of life estates (ch. 38, Laws of 1909: sec. 3871a, Stats.), approximately ten. years’ purchase, so that even an annuity of either $150 or $250, payable absolutely and without contingency, could not have been worth nearly the sum of $4,500. The annuity tables are predicated, however, only upon the contingency of life, but this contribution of an adult son to his parents was clouded by many other contingencies. He was under no legal liability
By the Court. — Judgment reversed, and cause remanded for new trial: With option, however, to plaintiff, at any time within thirty days after notice of filing .remittitur in the circuit court, to elect to enter judgment for $2,500 damages, with costs: no costs to be allowed in this court for printing case.
Dissenting Opinion
The following opinion was filed February 19, 1910:
(dissenting). The evidence convinces me that deceased and the engineer were agreed upon the manner of operating the locomotive. True, the latter was the superior. True, if the former had protested he would have been powerless in the matter. But likewise true, if deceased
The infirmity in this case is not in that the fireman failed to do something to deter the engineer from pursuing his obviously reckless course, but in that the evidence clearly shows he was perfectly agreeable to what was done, and, therefore, appellant should not be required to pay his personal representative on account of his negligence. ,