140 Wis. 1 | Wis. | 1909
Appellant’s first contention is that the locus in ■quo was in fact depot grounds, although he assigns no error either upon the answer to the first question in the special verdict or to the refusal of the court to set it aside. Disregarding such omission, however, there was much evidence introduced with reference to the use which was made of the various tracks as well as of the location of the place of injury with reference to any station, and the jury were aided by a view in passing on accessibility to the public for loading freight. The question whether a given place is or is not de
The next material contention of the appellant is advanced under the form of an attack upon the sixth finding that the plaintiff’s injury was caused in whole or in part by the absence of a fence. Counsel supports his contention mainly by cases decided under very different statutes and involving radically different principles and reasons from those applicable to our statutes: statutes which merely command railroad companies to fence their rights of way, and under which it is held that failure to do so, being a breach of the law, is an act of negligence. Such cases are entirely analogous to the decisions of this court under statutes prohibiting excessive rates of speed and requiring ringing of bell. Sec. 1809, Stats. (1898); Ransom v. C., St. P., M. & O. R. Co. 62 Wis. 178, 22 N. W. 147; Piper v. C., M. & St. P. R. Co. 77 Wis. 247, 46 N. W. 165. The principle there involved is merely that the failure of the statutory duty constitutes negligence from which the courts start with the logical deduction that for injuries proximately caused thereby, and not contributed to by the negligence of the person injured, the company should be liable. In the application of that rule there has been much discussion whether proximate causal relation can exist between the absence of a fence and the intentional entry upon railroad grounds by one in the full exercise of his faculties and competent to use judgment, choice, and volition, as in the two cases cited by appellant from Minnesota. Fezler v. W. & S. F. R. Co. 85 Minn. 252, 88 N. W. 746; Schreiner v. G. N. R. Co. 86 Minn. 245, 90 N. W. 400. It was in the
It has already been decided that proximate causal relation, including the element of reasonable anticipation, is not necessary, but merely that the railroad’s omission shall be causa sine qua non. Atkinson v. C. & N. W. R. Co. 119 Wis. 176, 96 N. W. 529; Hayes v. Mich. Cent. R. Co. 111 U. S. 228. Also, that contributory negligence of the respondent is no defense. Quackenbush v. W. & M. R. Co. 62 Wis. 411, 22 N. W. 519; S. C. 71 Wis. 472, 37 N. W. 834. The purpose of this statute was to cast upon the railroads absolute liability for injuries to cattle whose entry upon the tracks was made possible by absence of the prescribed fences, and when it was amended in the revision of 1878 by the addition of “persons,” the extension of the same purpose to human beings was obvious.
The question to be decided in this case, therefore, is not whether the injury to this plaintiff was proximately caused by the absence of a fence, but whether, in the exact language of the statute, it was “occasioned in any manner, in whole or
Error is assigned upon the charge under the sixth question because the court told the jury to consider whether a fence would have “prevented or tended to prevent” plaintiff’s entry on right of way. In this we discover no error. The tendency of a fence to prevent the entry was proper to be considered in answering the question whether plaintiff’s injury was caused by absence of such fence as the law requires. Of course defendant would not be liable merely because of such tendency alone, but no charge to that effect was given.
The findings that the locus was not depot grounds, and that absence of fence caused the plaintiff’s injury, are sufficient to support judgment for plaintiff,. and we need not discuss any errors assigned or committed in connection with other forms of negligence alleged and found against defendant, or with the question of plaintiff’s contributory negli: gence.
Contention is made that the verdict, $10,000, is excessive.
By the Court. — Judgment affirmed.