226 Wis. 118 | Wis. | 1937
The injuries, which resulted in the damages for which the plaintiff recovered judgment, were 'Sustained by
In answer to the questions submitted for a special verdict, the jury found that the defendant, (a) negligently failed to properly set brakes to hold the three cars left on the sidetrack; (b) failed to furnish a place of employment; and (c) also failed to use safety devices and safeguards reasonably adequate to' render that place as safe for plaintiff as the nature of the place and of the employment to be performed there reasonably permitted; (d) that the automatic coupling equipment on defendant’s freight car was in a defective condition at the time and place in question; (e) that each of those failures on the part of the defendant, as well as the defective condition of the coupling device, was a proximate cause of the plaintiff’s injury; and (f) that he did not fail to use ordinary care for his safety. Upon those findings and the jury’s assessments of the plaintiff’s damages, the court entered the judgment for plaintiff, from which the defendant appealed.
The defendant’s principal assignments of error are that because there is no evidence to sustain any of those findings, the court erred in failing to grant its motions for a directed
It is true, as the defendant asserts, that, as a general rule, presumptions are not considered to run backward; and that therefore the mere fact that the cars rolled away upon the second impact does not establish, as a conclusion having the dignity of a legal presumption, that the brakes had not been properly set seventeen hours prior thereto. However, it does not necessarily follow that, in view of all the other facts and circumstances stated above, there was not some circumstantial evidence of sufficient probative value to warrant the jury in reasonably inferring and finding that when the defendant spotted the cars, which continued to remain in its custody on its inclosed or depressed right of way, it negligently failed to properly set the brakes as required by its rules and practice. The facts that the cars may not have moved for seventeen hours in the absence of any impact, or even upon the first impact, are significant, but they do not compel the conclusion that the brakes were properly set, and that there was no negligence in failing to have them set so as to prevent the cars from rolling after a'second impact of but the usual and necessary character. Proper setting, and the exercise of ordinary care in setting the brakes, required them to be set SO' as to keep the cars from rolling away when subjected to such impacts, in point of force and number, as the defendant ought reasonably to have anticipated would occur upon the
The defendant contends that the jury’s finding that the automatic coupling equipment on its freight car was in a defective condition was unwarranted because there was no proof of any particular defect therein; and that the mere proof that the equipment failed to couple upon the first or second impacts did not establish any evidentiary fact from which the jury could find that there was a defective condition. It is true that there was no testimony by any witness who had inspected the equipment that there was any particular defect therein; and that several of the defendant’s employees testified that they found no defects therein on inspections made by them shortly after the accident, and also on the day following. However, as the plaintiff contends and as was held in Chicago, M., St. P. & P. R. R. Co. v. Linehan (C. C. A.), 66 Fed. (2d) 373, such testimony as to subsequent inspections does not establish conclusively that there was no defective condition at the time of an accident. The weight and effect to be given such testimony depends upon the credibility of the witnesses, and their knowledge, experience, and similar matters, which it is within the province of the jury to take into consideration in passing upon their testimony. Consequently, such evidentiary effect as proof of the failure of equipment to couple upon impact may have upon the issue as to whether it was defective is not conclusively defeated by the .testimony of witnesses that they did not discover any defects upon subsequent inspections. Chicago, M., St. P. & P. R. R. Co. v. Linehan, supra.
On the other hand, the plaintiff contends that there was sufficient evidence to reasonably admit of the jury’s finding that the equipment was defective, because, in addition to the proof that the- coupling failed to make on the first and second attempts, there is in the record, — as the plaintiff rightly asserts, — evidence, which the jury could believe, to the follow'-
With those facts in evidence, the fact that the lock block failed to drop as it should have done upon each impact constituted sufficient evidence to admit of the jury’s finding that the equipment was in a defective condition because it did not measure up.to the requirements prescribed in the Federal Safety Appliance Statutes. In view of the positive duty imposed by the statute upon the railroad to furnish safe appliances for the coupling of cars (Minneapolis & St. L. R. Co. v. Gotschall, 244 U. S. 66, 37 Sup. Ct. 598, 61 L. Ed. 995, 996), there is applicable, under such circumstances, the court’s statement in Pennsylvania R. Co. v. Jones (C. C. A.) 300 Fed. 525, 527, that—
“Apparently coupling by impact will always occur automatically, unless there is some defect or some abnormal attendant condition. Hence a failure to couple usually tends to show a coupler defect.”
And, therefore, such a failure is held sufficient, in connection with facts similar to those stated above, to sustain a finding that the equipment was defective. San Antonio & A. P. R. Co. v. Wagner, 241 U. S. 476, 36 Sup. Ct. 626, 60 L. Ed. 1110; Pennsylvania R. Co. v. Jones, supra; Chicago, M.,
Defendant also assigns error on the ground that the court sustained, — instead of setting aside on the defendant’s motion, — the jury’s findings that the defective condition of the coupling equipment on the freight car, and the defendant’s negligence in failing to properly set brakes, and in failing to furnish a safe place and use reasonably adequate safety devices and safeguards, were proximate causes of the plaintiff’s injury. Defendant contends that the only proximate causes of plaintiff’s injury were, (1) the jolt of the train upon Warnke’s intervening act of setting the brake; and (2) the plaintiff’s intervening failure to properly brace him
“Whenever a new cause [independent intervening circumstance] intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for which the final injurious consequences would not have happened, then such injurious consequences must be deemed too remote to constitute the basis of a cause of action.”
It will be noted under that statement of the rule that one of the essential conditions in respect to a new intervening cause, which is claimed to render a first wrongful cause too remote to constitute the basis for liability for injurious consequences, is that the new intervening cause must not be a consequence of the first wrongful cause. Consequently, under that rule the jury’s findings as to proximate causes were not erroneous if there was evidence because of which the jury could and did reasonably believe that the acts of Warnke and Kramer, after the cars had started to roll away, were but natural consequences of the defendant’s prior causal negligence in setting the brakes, or the defective or unsafe condition of the coupling equipment. In support of the plaintiff’s contention that the jury was warranted in considering his and Warnke’s acts and conduct but the natural consequences of the prior wrongful causes for which the
“. . .It has long been settled that the chain of causation is not broken by an intervening act which is a normal reaction to the stimulus of a situation created by negligence,' and such normal reaction has been held to' include the instinct toward self-preservation, Stott v. Shepard, 2 W. Bl. 892 (the lighted squib case), and the equally natural impulse to rush to others’ assistance in emergency, Wagner v. International Ry. Co. (Cardozo, C. J.) 232 N. Y. 176, 133 N. E. 437, 19 A. L. R. 1. . . .
“To determine whether there was a continuous succession of events leading proximately from fault to injury, the test*130 is not whether the plaintiff was acting in performance of his duty when injured, but whether his act was a normal response to the stimulus of a dangerous situation .created by the fault. . . .
“If we are right in our understanding of the rule, there was substantial evidence before the court below upon which to submit the cause to the jury upon the issue of proximate cause.”
That decision is in accord with the rule stated in the Restatement of the Law of Torts, § 443, as follows :
“An intervening act of a human being or animal which is a normal response to the stimulus of a situation created by the actor’s negligent conduct, is not a superseding cause of harm to another which the actor’s conduct is a substantial factor in bringing about.”
In the “Comment” published with that rule it is stated:
“It is not necessary that an act which is done by the person harmed or by a third person should be ‘reasonable;’ that is, that the act should be one which a reasonable man would regard as not involving an unreasonable risk to himself or others. It is enough that the act is a normal response to the stimulus of the situation created by the actor’s negligence. If it be done by the person who is harmed and is unreasonable in the sense above stated, it may amount to contributory negligence which as such prevents him from recovering, . . . but the actor’s negligent conduct is none the less the legal cause of the harm. If the act be done by a third person, its unreasonable character may make him as well as the actor whose negligence created the situation liable to the person harmed thereby.”
Consequently, as the intervening acts of the plaintiff and Warnke in endeavoring to stop the cars could reasonably be considered by the jury to be but their normal response to the stimulus of the situation and emergency created by the defendant’s prior wrongful causes, those acts were not such superseding causes as to relieve the defendant from liability for the plaintiff’s injury. It follows that the court did not
The defendant also assigns as error the court’s submittal of questions to the jury for a verdict as to whether the defendant failed, (1) to furnish a place of employment, and (2) to use safety devices and safeguards reasonably adequate to render that place as safe for the plaintiff as the nature of the place and nature of the employment to be performed there reasonably permitted. Defendant contends that there was no evidence to support affirmative findings in either of those respects; that the jury’s findings in those respects show its temper and willingness to find without any evidence in support thereof; and that in those respects there was no testimony otherwise than on the specific issues covered by the jury’s findings as to the defendant’s negligence in failing to properly set the brakes, and the defective condition of the coupling equipment. A statement by plaintiff’s counsel, on moving at the conclusion of testimony for leave to amend his complaint by charging a violation of the safe-place statute, discloses that the defect relied upon in respect to the place of employment was solely the incline in the track on which the defendant spotted the three cars; and in contending in his brief on appeal that there was an issue as to whether the defendant failed to furnish a “safe place,” the plaintiff relies solely on the evidence as to “slopes and grades and location of the tracks.” That evidence shows that the track on which the three cars were spotted was part of the defendant’s right of way, which was depressed pursuant to orders of the railroad commission; and that to have an “operating grade” for that track it was necessary to have the incline in question in order to connect at its one end with the track to' the Electric Company’s yard, and at its other end with other tracks to enter the main line. As there is no
Furthermore, as defendant contends, in so far as any issue in relation to failure to use reasonably adequate safety devices and safeguards was involved, it was substantially and sufficiently submitted under the question as to whether the automatic coupling equipment on defendant’s car was defective. The dual submission of virtually the same issue, and having the jury return two findings based on the same delinquency, unduly emphasized the significance of that lapse of duty to such an extent that, coupled with the error in submitting the question as to a failure to furnish a safe place of employment, the jury may have been seriously affected thereby to the prejudice of the defendant. The danger of such errors unduly prejudicing the jury was greater in this case because of the sympathy for the plaintiff, which was naturally aroused by his exceptionally severe and distressing injuries; and in view thereof and of the meagre basis in the evidence for finding any actionable conduct or default, upon which a recovery from the defendant could be predicated, it was particularly important and necessary to avoid everything that improperly tended to be prejudicial.
Defendant also assigns error on the ground that the court refused to set aside the jury’s finding that the plaintiff did not fail to exercise ordinary care for his own safety; and that no causal negligence was attributable to him. The only respects in which the defendant claims there was contributory negligence are plaintiff’s failure, (1) to board the car more promptly before it had gathered so much momentum; (T) to brace himself on the little platform; and (3) to
Likewise, the defendant’s assignments of error in relation to the court’s rulings on questions of evidence, its instructions to the jury, and its refusal to grant a new trial on the ground of the misconduct of the clerk of the court and one of the jury commissioners, cannot be sustained. The misconduct of the clerk and the commissioner, which resulted in the latter, at the clerk’s suggestion, taking the names of five jurors off the list of jurors filed with the clerk before the name slips were written and deposited in the box, was clearly unlawful. But as the defendant did not object because of that irregularity until after the verdict was returned, and there is no showing that it was injured thereby, it is not entitled to have the verdict set aside on that ground. Sec. 270.52, Stats.; Ullman v. State, 124 Wis. 602, 103 N. W. 6; Emery v. State, 101 Wis. 627, 78 N. W. 145.
The defendant, furthermore, assigns error on the ground that the court refused to' reduce the damages assessed by the jury, or grant a new trial in the interests of justice because the verdict was excessive. No exception is taken to the item of $2,301.80 assessed, at the court’s direction, for hospital and medical expenses. Defendant challenges the jury’s assessment of $5,000 as damages for plaintiff’s pain and suffering, and loss of capacity to enjoy life. That assessment was fully warranted by evidence to the following effect: The plaintiff was forty-eight years of age and of perfect physique at the time of his injury. Upon falling from the car his left leg doubled up and landed on the track in such a position that a car wheel went over the lower part thereof, and stopped with part of the wheel on the femur bone. After it
Defendant also challenges the jury’s assessment of $25,000 as damages for plaintiff’s loss of earnings and earning capacity. When injured on July 18, 1933, he was earning $140 per month, or $1,680 per year. Upon being able to work again, he was employed by the Electric Company as a watchman, and earned $261.17 in 1934; $324.60 in 1935; $393.62 in 19,36; or a total of $979.39 for those three years. That total compared to his former earnings of $1,680 annually discloses an actual loss of $4,060 for those three years; and adding thereto his loss of $770 for the last five and one-half months of 1933, makes his total wage loss up to the time of the trial $4,830. Deducting that accrued loss from the jury’s assessment of $25,000 leaves a balance of $20,170, as the jury’s allowance for his future loss in earnings and earning capacity. At his age of forty-eight years when injured, his expectancy under the mortality table was twenty-two years, which would extend his life to seventy years of age. For that period, less the first three and one-half years which had elapsed up to the time of the trial, his total probable loss would be $24,605, if it is assumed that his annual loss would continue at the uniform rate of $1,330, although often the earning capacity of men engaged in such strenuous activities declines materially as they age. But as that total of $24,605 would accrue only at the rate of $1,330 per year, during each of the last eighteen and one-half years of plaintiff’s expectancy, if he is to be paid presently instead of being indemnified
Judgment reversed, and cause remanded with directions to grant a new trial.