93 Wis. 426 | Wis. | 1896
The verdict is fatally defective for want of any finding on the subject of proximate cause. It finds specially that defendants did not exercise ordinary care in the operation of their train and in keeping the track free from obstructions;- that plaintiff was injured, and was not guilty of any want of ordinary care which contributed to produce such injury. But that is not sufficient' to cast upon defendants the consequences of such injury. It should not be forgotten, in such cases, that the mere fact that one person is-injured by the failure to exercise ordinary care on the part of another in respect to some duty which such other owes-to such person, does not render such other liable therefor, unless such injury was the natural and probable result of such negligence and one which, in the light of attending circumstances, such other ought reasonably to have foreseen might probably occur as a result of such negligence. This is absolutely an essential element of proximate cause, requisite to actionable negligence; and, where there is no general verdict, and such element does not appear conclusively from the evidence, and is not found by the special verdict, no valid judgment can be given upon it. Kreuziger v. C. & N. W. R. Co. 73 Wis. 158; Jewell m. C., St. P. & M. R. Co. 54 Wis. 610; Kerkhof v. Adas Paper Co. 68 Wis. 674; McCowan v. C. & N. W. R. Co. 91 Wis. 147; Huber v. La Crosse City R. Co. 92 Wis. 636. As said in McGowan v. C. & N. W. R. Co., supra, in effect, the facts constituting proximate cause, i. e. not only that the injury was the result of want of ordinary care on the part of the defendants, but that, in the light of attending circumstances, a person of ordinary intelligence might have expected that such an injury might probably occur as a result of his failure to exercise ordinary care, are indispensable in order to constitute a continuous succession of facts so connected as to make a complete chain, a natural whole, reaching from the negli
The real cause of the injury which plaintiff suffered, as conclusively shown by the evidence, was the failure on the part of Simpson & Oo.’s men, of whom plaintiff was one, to keep the skids in position at a safe distance from the track. This phase of the case appears to have been entirely lost sight of in the submission of it to the jury, and there is no finding on the subject whatever. Ed. Parquette, one of plaintiff’s witnesses, said, in substance: “ I had seen the cars strike the skids before, but only touch them. The skids lay.loosely. The effect of the logs on them was to work them back and forth.” John Willet, another witness for plaintiff, said: “ The men had to put the skids in place quite often to keep them clear from the train. That was part of our work,— to keep the skids in place.” Plaintiff testified to the same effect. The unloading crew were all Simpson & Oo.’s men, who were working separately and apart from defendants’ crew. Hence the persons who operated the train had a right to assume that the unloading crew had performed their duty, and to operate the train accordingly. Ho other reasonable conclusion can be reached, from the evidence, but that, if negligence is shown in this case, it is that of plaintiff and his fellow-workmen under Simpson & Oo. in negligently failing to see that the skids were so placed as to clear the train, or of plaintiff in standing, his back to the train as it moved in on the track, regardless of the location of the skids and the liability of the train to strike them, or the negligence of both combined; and in either event the resulting injury is not legally chargeable to the defendants. The motion, made at the close of plaintiff’s case, to direct a verdict in defendants’ favor, should have been granted. Railing in that, the motion to
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.
