141 Wis. 423 | Wis. | 1910
Lead Opinion
The right of the plaintiff to recover in this •action is governed by the provisions of sec. 1816, Stats, (ch. 254, Laws of 1907), which provides that:
“Every railroad company shall be liable for damages for all • injuries . . . sustained by any of its employees, . . . when such injury . . . shall have been sustained by any . . . employee of such company, while engaged in the line of his duty as such and which such injury shall have been caused in whole or in greater part by the . . . negligence of any other officer, agent, servant or employee of such company, ... in the discharge of, or . . . by reason of failure to discharge his duties as such.”
It is also provided that the court shall submit to the jury the questions whether any negligence attributable to the company “directly contributed to the injury,” and, if such negligence is found, “whether the person injured Was guilty of any negligence which directly contributed to the injury,” and, if the jury shall find the injured person guilty of contributory negligence, the court shall then submit to them the inquiry “whether the negligence of the party so injured was slighter or greater as a contributing cause to the injury than that of the company.” It is further provided:
“In all cases where the jury shall find that the negligence of tire company . . . was greater than the negligence of the ■employee so injured, and contifibuting in a greater degree to such injury, then the plaintiff shall be entitled to recover.
The trial court directed a verdict for the defendant upon the ground that the evidence in this case showed as matter of law that the company’s negligence, which concurred with that of the plaintiff to produce his injuries, was not greater and contributed in no greater degree to such injuries than the plaintiff’s contributory negligence.
In Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 119 N. W.
Upon this and other appeals, in actions under this statute, additional considerations have arisen respecting the interpretation of the context of the act and its effect' in the modification of the law as it theretofore existed. Subd. 3 of the act requires that there shall be submitted to the jury the question whether the company’s negligence and the injured person’s contributory negligence directly contributed to the injury. The inquiry is suggested: Does the use of the word “directly” operate to modify the law of proximate cause in the law of negligence ? We discover nothing in the phraseology of the act indicative of a legislative intent-to- modify the law on this subject. Nor does the language employed necessarily operate to effect a change as to what shall constitute proximate cause. The provisions are that the jury shall determine whether the company and .the injured person are guilty of negligence “directly contributing to- the injury.” The word “directly” was evidently employed here in the sense of proximately, and-was intended to include and comprehend the negligence which naturally and probably caused the injury; that is, the negligence which proximately contributed to produce the injury. True, it has. been said, in cases reviewing
The statute also provides that if the jury shall find that the negligence attributable to the company “was greater than the negligence of the employee so injured, and contributing in a ■greater degree to such injury,” then plaintiff’s contributory negligence shall be no bar to< his recovery. This abrogates the pre-existing law that the contributory negligence of the injured person may defeat recovery. This provision is a complement to the preceding subd. 2, which makes railroad companies liable for injuries to employees which have resulted “in whole or in greater part” from the negligence attributable to them. It is to be noted that the questions prescribed by subd. 3 are made to harmonize with subd. 2, in that the negligence
Interpreting these provisions together, we are persuaded that the legislative intent was to apply this legislation to the ■law as'established by the decisions of this court. It had been ■recognized by this court that the negligent acts of two or more responsible agencies might proximately contribute to produce an injury and that their negligences might concur in different degrees in proximately causing it. Xn Ounningham, v. Lyness, 22 Wis. 245, the court, referring to the concurrence of an injured person’s negligence with that.of another as a bar to recovery, states: “A party cannot recover for an injury of which ‘his own negligence was in whole or in part the proximate cause.” In an exhaustive review of the decisions of this court-on the subject of negligence and contributory negligence in Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 84 N. W. 446, the subject was adverted to. The result is embodied in the headnote and is stated thus: ~
“In an action to recover damages claimed to have been ■caused by actionable negligence of the defendant, contributory negligence of the plaintiff, however slight, precludes his recovering damages, notwithstanding negligence of the defendant, however great, contributed thereto.”
This idea that the concurrence of the negligences of both parties to a legal controversy might constitute the proximate cause is also recognized and exemplified in numerous crossing ■cases that have come before this court.
The context of the statute indie,ates that the legislature as-
It has been claimed and the suggestion is made in argument on this feature of the law that it is practically impossible for a jury to determine such controversies upon a scale of infinite degrees, and that the legislature therefore must have intended
It is alleged -that the plaintiff was guilty of negligence in omitting to perform his duty as brakeman on the occasion in question, in that he failed to protect the rear of the freight train from the passenger train, and that this failure of duty by him was a proximate cause of the collision and his injuries. The contention is that but "for plaintiff’s contributory negligence the injury would not have been received, and hence that the negligence of the plaintiff in its most favorable aspect under the law is equal to the negligence attributable to the defendant as a contributing cause to the injury. In the solution of this question all of the inferences from the evidential facts most favorable in support of the plaintiff’s alleged cause nf action must be assumed to be the view of the case which may be taken by the jury. The contention that plaintiff’s duty did not require him to flag the train under rule 62 unless directed so to do by the train conductor or by a signal from the engineer by a blast from the whistle cannot be sustained. The rule is clear in its provision that when a train stops between stations a flagman must go back to stop any train that may be following, give the prescribed signals, to it, and remain at the place to which he has gone until the train stops or he is re
“Train and engine men will be held equally responsible for a violation of any of the rules governing the safety of trains, and they must take every precaution for the protection of trains even if not provided for by the rules.”
We find no support for plaintiff’s claim that the duty imposed by these regulations was disregarded in practice to such an extent as to abrogate them. Nor is it shown that the plaintiff was informed while in defendant’s service that these rules and the duties imposed thereby were not obligatory on him. We think that the plaintiff as rear brakeman of this train was required to perform whatever duty these rules imposed on him.
The evidence tends to show that the plaintiff was the rear brakeman on a freight train which came to a stop on the main track between stations. He had not been informed by the engineer’s signal that the train was to make a stop. So far as he then knew, the train might be stopped only momentarily. In the operation of trains stops of a momentary character must inevitably occur, and on such occasions it would be both unnecessary and impracticable for the rear brakeman to leave the train at once to signal a train that might be following. It is obvious that if the brakeman should immediately so leave his train on all such occasions, he would on many occasions be wholly separated from his train. He testifies that he went forward to a point where he observed that the engine had been detached from the train and had departed for Hilbert Junction ; that then he crossed over to the other side of the train; that he observed the odor of a hot box, and that he attempted to locate it while he was returning to the caboose; that he took no more time than it naturally takes to make such a trip; that he returned to the caboose without intending to go and signal the coming passenger train; that he at once looked for the dope bucket in the caboose to fix the hot box; and that the col
The case also demands of the jury that they determine in what degree the negligence attributable to the company contributed to produce the injury. Among the matters bearing on this question it is alleged that the train dispatcher was derelict in his duty in permitting the passenger train to enter
The plaintiff’s contention that the defendant is estopped from charging plaintiff with contributory negligence because he was sent out on this trip in such a state of physical and mental exhaustion from being in constant service for the defendant immediately preceding it as to malee him incapable of comprehending and performing the duties required of him is not sustained. The evidence is undisputed to the effect, and plaintiff claims, that he attended to and comprehended all his duties. His whole claim and the showing refute the inference that he was unable to attend to Ms duties.
It is averred by the defendant that since the plaintiff has the burden of proving that the negligence attributable to the defendant was a greater contributing cause to the injury than that of the plaintiff, this involves a modification of the rule which has heretofore obtained in this state which casts the burden of proving plaintiff’s contributory negligence on the
Erom the views indicated, it results that the court erred in directing a verdict. The case should have been submitted to the jury for determination of the issues under the law as amended by eh. 254, Laws of 1907.
' By the Gowrt. — Judgment reversed, and the cause remanded for a new trial.
Dissenting Opinion
The following opinion was filed December 21, 1909:
(dissenting). Truly, as an eminent writer said many years ago, “To dare; that is the price of progress.” -“It is necessary, for the sake of the upward march of the human race, that there should be proud lessons of courage permanently on the heights.” Looking at the revolutionary character of ch. 254, Laws of 1901) (sec. 1816, Stats.), from that standpoint alone; considering it as a striking public conception of the needs of new conditions and expression thereof, independently of fundamental principles, it responds in full measure to the sentiment of the literary philosopher. To that extent it is admirable; but viewing it, as We must, from the standpoint of our constitutional system, and legal principles settled by the courts, not within the province of legislative authority to disturb, one can but be impressed with the idea-that the limits upon legislative power were not carefully studied, neither was the meaning of significant terms in the law, as defined and settled in the common law and judicially recognized for ages, clearly comprehended.
It may be that the times called for such a radical change of human responsibility as Was attempted to be wrought by the
I must look upon the legislature as a body of wise, intelligent men, who, either as a whole, or by the particular ones who. were permitted to cast the legislation, knew what they desired to do and used language to that end. “If the end be-legitimate” and the manner of reaching it be “appropriate to that end,” in any reasonable view, of course I would sustain the law without reluctance, regardless of my personal idea of the policy thereof. I would not interpolate words, not in place by necessary implication, nor substitute one word for another in order to read out of the law a meaning which is not there in its literal sense, and which, looking at the conditions which moved the enactment of it, it seems that neither-the legislature, as a whole, nor those particular members, or assistants who were permitted to- frame the law, intended. I would take the law as I find it, and sustain it if it be legitimate, and judicially nullify it if it be not.
I am not unmindful that courts go a great way, and properly so, to save a law from absurd consequences, and particularly from condemning it as unconstitutional, striving to read therefrom a meaning which is legitimate and can fairly be said to be within the reasonable scope of its language, resolving all reasonable doubts to that end; but to nullify the will of the legislature by attributing to its language a meaning notintended, though the effect thereof might be to save the law from condemnation as void for uncertainty or unconstitutionality, is as wide a departure from the judicial function as to condemn it when not clearly outside constitutional limitations. It were better for the public interests, and would give greater dignity to the lawmaking power, to take the legislative ideas as found expressed, if they can be discovered
In scanning an act of the soft of the one before us we can no more shut our eyes to the present method of producing laws, than we can to the conditions which lead to them, in determining their character and constitutionality. The former sheds much light on the legislative purpose, and the latter as much effect upon the weight to be given to the fact of legislative approval. Not on the mere policy of the legislation, for that is not a field for judicial exploration, but on the question of whether the enactment is within or without the fundamental limitations of legislative authority.
While the principle is as vital now and of as much dignity as ever, that the judiciary must pay such high regard to the lawmaking power as not to place the stamp of judicial condemnation upon its work, unless it transcends, beyond reasonable doubt, constitutional limitations, in determining whether it does or does not, some, if not all, who are called upon to weigh the matter, will give a measure of consideration to the great change which has come about in recent years in the manner of making laws. ' That enactments, under present conditions, have some less weight of prima facie support from the mere incident of legislative approval, with some judicial students and administrators, than formerly, is most natural.
The act in question has been one of the most troublesome pieces of legislation with which the court has ever had to deal. I think all agree that it was framed by a layman or laymen, or by some person, or persons, without proper conception of legal terms and the scope of legislative authority, or the thought was to cut loose from judicial learning and to rise words as they are ordinarily understood by people generally in common every-day life. That is strikingly apparent, as is indicated in Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 119 N. W. 309, 316, in the obvious, asT think, attempt to take from the court its constitutional authority to deter
The court is commanded by the legislation to submit specific questions to the jury, evidently, I think, as the ones involving responsible fault. It is declared that, “In all cases under this act the question of negligence and contributory negligence shall be for the jury” (sec. 1816, subd. 5) ; taken literally, a clear invasion of the judicial function. In the Kiley Case, as now, I was constrained to give the legislature credit for intending just what it said, and to hold that, since it exceeded its power in so invading the judicial field, and would doubtless not have passed the act at all, independently of such invasion, the whole act was unconstitutional. What the law is, what it has been, the meaning of legal terms, what constitutes a question of law and what constitutes a question of fact for a jury, and whether there is the latter or not, and when a controversy should be submitted to a jury as involving disputed matters of fact and when it should not; are all judicial questions with which the legislature has nothing to do under the constitution. Those principles are elementary. A failure to firmly maintain them would be treason to the paramount written law. That the lawmaking power would considerately desire not to have them maintained, or that it would fail to award proper merit for their strict maintenance, I would not think for a moment. However, the fact, as seems to the writer, that those principles were overlooked, as said in my independent opinion in the Kiley Case, brings into action as applicable, to some extent, to the legislation, the rule that when a court reaches a conclusion as to a matter of fact under a misconception of the law, or by overlooking it altogether, the ordinary presumption as to its correctness does not obtain.
In now dealing with the act in a different situation than in the Kiley Case, it is more evident than ever that either the commonest principles of the law of negligence, intrenched in our jurisprudence, were overlooked, or there was a purpose to entirely change them. In reaching this conclusion I proceed thereto, all the time trying to get the legislative meaning out -of the law, rather than to put such meaning into it, or a meaning which will sustain it.
Now, in one aspect of the case, whether the trial court was right in holding that, on the evidence, there was no jury question as to whether the act of the appellant contributed, directly, less than that of the engineer of the passenger train, to produce the accident, depends on the meaning of the law. In my opinion, certainly, if the language of the legislative questions is to be taken literally, there was no jury question, as the learned circuit judge held. But it is said that it is not to be so taken.
Possibly the purpose of the legislature was to adopt, somewhat, the principles of comparative negligence. On such principles, there was room in the evidence, perhaps, to say that one of the negligent individuals was in greater fault than the other. But how can we say such was the purpose ? Comparative negligence, generally speaking, contemplates degrees of fault and responsibility on the party guilty of the highest degree thereof. There is no such idea of comparative negligence in the act in question.
In the published law, in large black letters, at tire begin
.Subd. 3 requires the court to ask the jury whether the defendant was guilty of negligence directly contributing to' the injury. What does that mean? Literally, as indicated, it means, was the defendant guilty of any negligence which contributed, in a physical sense, to produce the injury. Want of ordinary care is not, necessarily, within the meaning at all, nor the essential elements of proximate cause. All that is required to call 'for an affirmative answer to the question, is some negligence, however slight, and some consequent direct effect in producing the injury. These observations apply likewise to the legislative question required to be submitted as to the plaintiff’s fault.
That the legislature intended to provide, as above suggested, hardly seems probable, but nothing else, in my judgment, can be read out of the act.
The third question to be submitted under the act, clearly,. ■it seejns, must be read in connection with the other two; was the “negligence of the” plaintiff “slighter ... as a contributing cause to the injury than that of the” defendant? It. should be noted that the question is not, was the negligence-of the plaintiff slighter and did it contribute in greater degree, etc.; but was it slighter ... as a contributing cañóse,. etc. Consistently with the first two questions, by necessary implication, “direct” should be read before “contributing.” In other words, the inquiry required is, was the negligence of the plaintiff less than that of the defendant as a direct contributing cause of the injury.? That plainly makes the-comparison not between degrees of fault, but between degrees of direct physical production of the result. True, we must confess at every step, it is almost incomprehensible that the legislature could have intended -any such result, but the law seems to read so very plain that I can see no way to deal with it other than by giving effect to it in its letter, so far as constitutional, or condemn it as .void for uncertainty.
I do not overlook that subd. 4 provides that the plaintiff shall recover if defendant’s negligence was greater and con
Now, in the judgment of the court, in order to malee the act of 1907 a sensible, workable, constitutional piece of legislation, it is compelled to add to the help thereto afforded in Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 119 N. W. 309, by holding, in the whole, that, when the legislature commanded the submission of certain questions-on the subject of negligence, it did not intend to make them, necessarily, sufficient to settle the ultimate question of responsibility and could not, legitimately, prevent the submission of other questions necessary to fill out a case in that regard; and by further holding that the language of subd. 5: “In all cases under this act the question of negligence and contributory negligence shall be for the jury,” must have added thereto, by necessary implication, something like this, when the facts in that regard are in such doubt that a jury on the evidence could reasonably find either way. Also the word “negligence,” in each of the three legislative questions, must be read as, want of ordinary care, the word “directly” in the first two questions, must be read as proximately, and the words, “whether the negligence of the party so injured was slighter or greater as a contributing cause to the injury than that of the company,” etc., read as, whether the want of ordinary care of the party injured was less and contributed less, proximately, to produce the injury than that of the company, etc., thus harmonizing the law with some rational idea of comparative negligence.
I cannot consent to the radical necessary changes of language indicated. I think it violates the plain intent of the act. Absurd almost, if not quite so,' as the law is-, viewed as I view it, I am constrained to believe that those who had to do with drafting it meant just what they said and nothing else.
Looking at the'aet as I do-, I cannot come to any other conclusion than the learned circuit judge did. Under the act,, as I read it, the case had to turn on whether fault, as regards direct effects, regardless of degree otherwise, of the engineer, contributed, not proximately, with all elements that word implies, but directly in greater degree to produce the injury than like fault of the plaintiff likewise contributed. In other words, the question was, did defendant’s fault, regardless of the quantum thereof, more than plaintiff’s, at the instant of the collision, lend greater effectiveness, regardless of the elements of responsible causation as understood universally in the law of negligence, than did like fault on the part of plaintiff, to produce the result complained of. I think the members of the court would easily unite in saying that the evidence did not present any jury question on that subject; that when we come down to the instant of the injury, leaving out of view the degree of fault committed outside the period of time in which a collision was inevitable, the act of appellant was at least as promotive of the catastrophe as that of respondent.
The appellant knew the passenger train was nearly due and that it was necessary to go about his duty of setting out the special signals in such cases, in ample time for him to have performed that duty before such train entered the region of unavoidable danger. He neglected to do that without any
The respondent moved for a rehearing. In support of the motion there was a brief by Greene, Fairchild, North & Parker, attorneys, and C. H. Van Alstine, of counsel; and in opposition thereto a brief by Wigman, Martin & Martin.
The motion was denied February 1, 1910.
