52 Wis. 150 | Wis. | 1881
The rule laid down in Improvement Co. v. Munson, 14 Wall, 448, cited by the learned counsel of the respondent, and commented upon and approved in Pleasants v. Fant, 22 Wall., 122, has been substantially recognized by this court in numerous cases. That rulé is: “If there is any evidence upon which the jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed, the court cannot take the case-from the jury. The question is, Is the evidence sufficient to justify a verdict?” By the very terms of this rule, the question is not, whether the court would have found a verdict in the case made by the evidence, but whether the jury would have been justified in finding a verdict upon it. The party is entitled to the verdict of the jury, rather than the finding of the court, on questions of fact, if the jury would be warranted or “justified” in finding a verdict upon the evidence. When properly considered, there is scarcely a seeming conflict of authority in respect to the rule for granting nonsuits and ordering verdicts by the court, in jury trials.
Tested by this rule, ought the circuit court to have granted a nonsuit in this case? We think there was testimony sufficient to justify, the jury in finding that the company was negligent, and that the mother of the child used ordinary care, under the circumstances, to guard and restrain it from straying upon the .track of the railroad, and to prevent this and similar accidents happening to it. We do not understand that the learned counsel of the respondent relies very strongly upon these two points; but he insists with much more plausibility that there was not sufficient evidence that the injury of the child at the time of the accident caused its death, to be submitted to the jury, or, in other words, that there was not sufficient evidence to justify the jury in so finding. Whether the death of the child directly and naturally resulted from the alleged injury as its proximate cause, is an important question, and as difficult to determine as a like question in criminal
I shall not enter into the refinements which have been put upon the maxim, “In jure non remota causa, sed próxima, spectatur,” but state the rules generally recognized and approved by the authorities, and ajiplied in cases of this sort, by which it must be determined whether the jury in this case would have been justified in finding from the evidence that the injury was the sole cause of the death of the child, and that therefore its death was caused by the negligence of the company. The general rule laid-down by Chief Justice Appleton in Moulton v. Sanford, 51 Me., 134, and cited approvingly by Chief Justice Dixon in Sutton v. Town of Wauwatosa, 29 Wis., 21, is as follows: “The cause of an event is the sum total of the contingencies of every description, which being realized the event invariably follows. It is rare, if ever, that the invariable sequence of events subsists between one antecedent and one consequence. Ordinarily, that condition is usually termed the cause whose share in the matter is the most conspicuous, and is the most immediately preceding and proximate to the event T In further exposition of the rule, it may be said here, as in Kellogg v. C. & N. W. Railway
It remains only to apply these rules to the evidence of this case. The child was of the age of one year and ten months, and in good health. It was on the railroad trach with another small child, who left the track just before the train arrived. The train approached at the speed of about fifteen miles per hour, and the engine came in contact with the child and threw it into the air and off and away from the track about fifteen feet. When the child was taken up, it was senseless, and one of its legs was broken and its head bruised. Two physicians were called, who adjusted and bandaged the broken limb and
It seems to us that this evidence supplies every requisite of the above rules, and makes a clear prima, faoie case, at least, that the death of this child was caused by its injury. The terrible violence with which it was thrown into the air and away from the track, by the engine running with such speed, certainly furnishes an “ adequate and efficient cause of death.” It is only surprising that the child was not killed instantly. Its continuous symptoms and sickness, beginning with the injury and ending in death, furnish a series of effects and consequences from such an adequate and efficient cause, natural, continued and unbroken to the end. There was no other intervening cause or causes shown by the evidence to break this continuity of sequence, or that could have produced death. The death of the child was a result very probable from such a cause, and which might have been reasonably anticipated by the defendant, and was the natural and direct consequence of the defendant’s negligence, so far as the court could know from the evidence. We are clearly of the opinion that there was testimony sufficient to have justified the jury in finding a verdict for the plaintiff, and that the circuit court
By the Court — The judgment of the circuit court is reversed, and the cause remanded for a new trial therein.