Morey v. Lake Superior Terminal & Transfer Co.

125 Wis. 148 | Wis. | 1905

SiebecKER, J.

It is strenuously urged by the defendant that this action cannot be maintained, because the cause of action pleaded is covered and concluded by a judgment of this court on an appeal in a former action, and that therefore the rule of res adjudícala applies to all questions involved in this case. This action is wholly independent of and in no way connected with the other and former action referred to. Nothing in the case shows that it is the same cause of action as is embraced in the judgment so relied on. It appears that this is an original action, which has not been before this court, and that it has never been prosecuted to judgment in the trial court or in this court. On this appeal we are confined to the record and pi’oceedings in this case, and therefore no question of res adjudicada is involved.

In stating the facts the pleader employed language which somewhat confuses the purpose of the complaint. The terms employed charge the defendant with ordinary negligence in the management and conduct of its business in running the train in question, and then characterizes the conduct of the persons in charge of the engine as “reckless, wanton, and unlawful,” without clearly indicating whether or not it is intended to charge an intentional wrong. This form of pleading bas been tbe subject of discussion in tbe recent ■cases of Wilson v. Chippewa Talley E. R. Co. 120 Wis. 636, 98 N. W. 536; Turtenwald v. Wis. L. I. & C. Co. 121 Wis. 65, 98 N. W. 948, and Rideout v. Winnebago T. Co. 123 Wis. 297, 101 N. W. 672, and been beld to be improper and open to a motion for indefiniteness. It seems tbat it was intended to state but one cause of action, and, in determining tbe question raised by tbe demurrer, it is therefore necessary to declare wbat cause of action is pleaded. Counsel for both parties bare assumed tbat tbe complaint charges a cause of action for ordinary negligence. This construction, under tbe above cases, precludes all claim tbat.it states a cause of action for a wilful injury, and we shall so treat it.

It is contended tbat under tbe facts stated in tbe complaint it appears as a matter' of law tbat tbe negligence charged was not tbe proximate cause of tbe injury. Tbe specific grounds of negligence charged are tbat defendant negligently ran its train over tbe crossing at an illegal rate of speed; tbat it negligently omitted to give tbe required signals by ringing tbe bell or blowing tbe whistle to give' warning to persons near or upon tbe crossing; and tbat in running its train across tbe street in question it negligently failed to keep a lookout for tbe purpose of avoiding collision with persons or vehicles using tbe same. Liability is asserted under these facts upon tbe ground tbat such acts of negligence caused tbe plaintiff to become unconscious and helpless from fright, at tbe unexpected and sudden danger, and tbat such negligence, through this unconsciousness and helplessness, produced tbe injuries complained of. Since it must be beld tbat tbe complaint alleges a cause of action for ordinary negligence only, we cannot perceive bow, in any aspect of tbe situation, tbe alleged failure to keep a proper lookout could be found to be tbe proximate cause of tbe injury, in view of tbe claim tbat plaintiffs helpless condition and consequent injury were caused bj- tbe unlawful speed of tbe train and tbe failure to give Mm any warning of its sudden approach. Tbe allegations of negligence upon this subject are not essential to tbe cause of action alleged and upon wbicb plaintiff relies. Tbe failure to give signals at tbe crossing of tbe approach of tbe train, and tbe running of tbe train at an unlawful rate of speed within tbe city, are recognized by tbe decisions of this court as negligent management of defendant’s business. See Brown v. C. & N. W. R. Co. 109 Wis. 384, 85 N. W. 271; Williams v. C., M. & St. P. R. Co. 64 Wis. 1, 24 N. W. 422; Hoye v. C. & N. W. R. Co. 62 Wis. 666, 23 N. W. 14; Eilert v. G. B. & M. R. Co. 48 Wis. 606, 4 N. W. 769; Bower v. C., M. & St. P. R. Co. 61 Wis. 457, 21 N. W. 536. Tbe question is, Do these alleged wrongful acts constitute actionable negligence? Tbe defendant’s demurrer challenges such a claim, and avers that such negligence was not tbe proximate cause of tbe injury, for tbe reason that a person of ordinary intelligence and prudence could not reasonably be held to foresee that a personal injury to another might probably follow from such alleged negligent conduct. A discussion of what constitutes proximate cause in negligence cases has been fully covered by former decisions of this court. See Kellogg v. C. & N. W. R. Co. 26 Wis. 223; Atkinson v. Goodrich Transp. Co. 60 Wis. 141, 18 N. W. 764; Deisenrieter v. Kraus-Merkel M. Co. 97 Wis. 279, 72 N. W. 735; Meyer v. Milwaukee E. R. & L. Co. 116 Wis. 336, 93 N. W. 6; Fehrman v. Pine River, 118 Wis. 150, 95 N. W. 105. These cases are to tbe effect that “tbe efficient cause [is] that wbicb acts first, and produces tbe injury as a natural and probable result, under such circumstances that be who is responsible for such cause, as a person of ordinary intelligence and prudence, ought reasonably to foresee that a personal injury to another may probably follow from such person’s conduct.” Deisenrieter v. Kraus-Merkel M. Co., supra. Such responsible causation is not dependent on time, distance, or a mere succession of events. It is tbe cause that acts first, and, either immediately or through other iuterveuiug agencies put in operation by it, produces the final result. From this it follows that if any event is produced by independent intervening circumstances, not put in operation by the wrongful acts alleged as the cause of an injury, no legal responsibility attaches, for the reason that “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.” Atchison T. & S. F. R. Co. v. Stanford, 12 Kan. 354; Schumaker v. St. P. & D. R. Co. 46 Minn. 39, 48 N. W. 559; Borchardt v. Wausau B. Co. 54 Wis. 107, 109, 11 N. W. 440. Upon this question defendant’s argument in the instant case is that, in the light of the attending circumstances, the sudden fright of plaintiff and his consequent helpless condition, if produced by the unlawful and reckless approach of the train, was a consequence which could not reasonably have been foreseen and anticipated by a person of ordinary intelligence and prudence, and that it must follow as a matter of law that no actionable negligence is charged. We cannot so regard the situation presented by the facts alleged in the complaint. The complaint avers that plaintiff was lawfully traveling over the crossing; that he exercised the precaution of looking and listening for approaching trains before attempting to pass over the first track; that he so-looked and listened while crossing over the second track through an opening between freight cars which obstructed his view of the crossing; that as he emerged from between the cars and was at a point about fourteen feet from the track where the train struck him, he looked to the west for a distance of from one half of a block to a block and saw no mov-mg train and beard no noise or signal or warning by whistle ■or bell of an approaching train; that he turned and looked to the east to see if any train or engine was approaching, and, while making this observation, proceeded on his course to ■a point between three and four feet from defendant’s track, when he again turned and looked to the west, and saw a train, distant about 125 feet, coming toward him at a high and dangerous rate of speed; and that such fast and perilous running of the train and its sudden approach without warning so frightened him as to produce unconsciousness and consequent helplessness. Are these alleged consequences of the wrongful conduct of defendant clearly of such an extraordinary character that it must be said as a matter of law that they could not reasonably have been foreseen and anticipated by a person of ordinary intelligence and prudence in the light of the attending circumstances ? This must be answered in view of the common knowledge on the subject acquired from experience in life under like and similar circumstances. We are persuaded that they are not of such an ■extraordinary and unusual character that they should be held as not within the range of probabilities in the affairs of life, and that the facts stated in the complaint axe sufficient to -constitute actionable negligence.

The suggestion that it is beyond reasonable probability that the specific injury might have been anticipated does not meet the question. It is not required that the “specific” injury or “such” an injury as is complained of was or ought to have been specifically anticipated as the natural and probable consequence of the wrongful act. It is sufficient if the facts and -circumstances are such that the consequences attributable to. the wrongful conduct charged are within the field of reasonable anticipation; that such consequences might be the natural and probable results thereof, though they may not have been specifically contemplated or anticipated by the person so «causing them. Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816; Meyer v. Milwaukee E. R. & L. Co. 116 Wis. 336, 93 N. W. 6; Deisenrieter v. Kraus-Merkel M. Co. 97 Wis. 279, 72 N. W. 735, and cases cited in opinion; Atchison, T. & S. F. R. Co. v. Stanford, 12 Kan. 354; Campbell v. Stillwater, 32 Minn. 308, 20 N. W. 320; Motey v. Pickle M. & G. Co. 74 Fed. 155, 20 C. C. A. 366.

Tbe question whether plaintiff was guilty of a want of ordinary care, under the facts and circumstances alleged, which contributed to produce the injury complained of, is one for the jury. The allegation that plaintiff stopped to look and; listen before attempting to cross the tracks and again while-in the act of crossing over the tracks, and that he saw no train approaching when he last looked, and heard no noise or • signal of an approaching train or engine until he suddenly saw the train approach under the circumstances alleged, which caused him to fall and become helpless through defendant’s wrongful conduct, presents a situation of which we cannot say, as matter of law, that his conduct is so variant from that of ordinarily prudent persons as to constitute negligence per se. Bohn v. Racine, 119 Wis. 341, 96 N. W. 813.

By the Court. — The order appealed from is reversed, and' the cause remanded with directions to enter an order overruling the demurrer, and for other proceedings according to-law.