Holum v. Chicago, Milwaukee & St. Paul Railway Co., 80 Wis. 299

80 Wis. 299 | Wis. | 1891

Cassoday, J.

As indicated in the opinion of the trial judge, contained in the foregoing statement, it appears from the undisputed evidence that the engine and cars were, at the time of the accident, under the control and management of the deceased as such brakeman. He gave the signals for the moving of them with his lantern. It also appears from the undisputed evidence that he gave the wrong signal, and failed to give the right signals, which would have made it safe for him to couple the cars; that about the same time his foot unfortunately got caught in the frog; that the result was that the car came upon him, and crushed him.

Counsel for the plaintiff contends that it was negligence ¡per se in the defendant to thus leave the frog unblocked and unguarded; and that such negligence made the defendant absolutely liable, regardless of the contributory negligence on the part of the deceased. Counsel cites no decision or authority for the existence of such a rule at common law. We are not aware that such a question has ever been presented to this court, notwithstanding the accidents which have happened by reason of the foot being thus caught in a frog, A few years ago the learned counsel for the plaintiff argued such a case in this court, where such a principle of law would have made his success certain, but he gave us no intimation that any such rule of law existed. Townley v. C., M. & St. P. R. Co. 53 Wis. 626. Obviously there never has been any such rule at common law. But counsel really invokes the propriety of such a rule in aid of a construction which he desires to have given to ch. 123, Laws of 1889, which went into effect a few days prior to the accident in question. That act requires every railway company operating any railroad in this state to erect and maintain sufficient guards and blocks -at the front and rear of every frog in the track of such road, and inflicts a penalty for any violation or failure so to do;,and also provides that such company “ shall, in addition, be liable to the person injured for all damages sustained thereby, whether the person so injured shall be a servant or agent of such corporation or not, and notwithstanding that such violation or failure shall arise or occur through the negligence of any other agent or servant thereof.”

Under this statute it is strenuously contended that the defendant is absolutely liable in this action, regardless of the contributory negligence on the part of the deceased; and, in support of such contention, he relies principally upon Quackenbush v. W. & M. R. Co. 62 Wis. 411. The language of the statute under which absolute liability was there held, was to the effect that, until the fences and cattle-guards should be made, the company should “ be liable for all damage •. . . occasioned in any manner, in whole or in part, by the want of such fences or cattle-guards.” Sec. 1810, R. S. Prior to that, language being incorporated into the Revised Statutes, the.statute was simply to the effect that, until such fences and cattle-guards should be duly made, the railroad company should “ be liable for all damages which shall be ' . . . occasioned by the failure to erect suck fences or cattle-guards ” as therein required. Sec. 30, ch. 119, Laws of 1812. In construing the language of that act, in an elaborate opinion by Ryajt, O. J., Re concluded by saying: “ The rule of this court must be taken as sustaining tbe defense of contributory negligence to actions against railroad companies for injuries occasioned by failure either to erect or to maintain fences on the line of their roads as in other actions for negligence.” Curry v. C. & N. W. R. Co. 43 Wis. 683. Such ruling was probably the occasion for the amendment of that statute so as to take away the defense of contributory negligence in certain cases. That case has never been overruled. but was expressly sanctioned in Johnson v. C., M. & St. P. R. Co. 29 Minn. 428; and recognized'as binding in the case thus cited and relied upon by counsel. 62 Wis. 416. We have no doubt of the correctness of such ruling.

Upon the act in question, the right to the defense of contributory negligence is still more apparent; for, by indicating that such right of action should not be defeated by reason of “ the negligence of any other agent or servant ” of the company, we may fairly imply that the legislature did not intend to take .away the defense of contributory negligence. Especially should this be so in view of the decision of this court in Curry v. C. & N. W. R. Co. 43 Wis. 683. We must, therefore, hold that the contributory negligence of the deceased was such as to defeat a recovery in. this action.

Besides, there appears to be no exception in the record to the direction of the verdict in favor- of the defendant. Such direction was no part of the record proper, and hence, to be reviewable on appeal, should have been excepted to, and such exception should have been preserved and incorporated into the bill of exceptions. This rule has frequently been sanctioned by this and other courts. Kirch v. Davies, 55 Wis. 287; Anstedt v. Bentley, 61 Wis. 629; Geisinger v. Beyl, 71 Wis. 361; De Lendrecie v. Peck, 48 N. W. Rep. (E. D.), 342.

By the Court.— The judgment of the circuit court is affirmed.