Brown v. Chicago & Northwestern Railway Co.

85 N.W. 271, 109 Wis. 384, 1901 Wisc. LEXIS 282

• Court: Wisconsin Supreme Court
• Decided: February 26, 1901
• Status: Published

Opinion

MaRshall, J.

Counsel contend that the evidence does not show contributory negligence as a matter of law. We shall not take time to follow the learned counsel in their ingenious reasoning on that point. The evidence is perfectly clear that the deceased had ample opportunity to discover the danger which resulted fatally to him, and that he drove his horse recklessly into it. He did not make any attempt to discover the coming train, though it must have been in sight when he was at least forty feet from the crossing. The evidence shows one of the most reckless attempts to cross a railway track, regardless of the danger which it in law and in fact suggests, that can be found in the books.

It is further contended that contributory negligence was not a defense, because the train that did the injury was running at an unlawful rate of speed and according to a custom of its servants known to and approved by it. It is argued that the injury to deceased, under the circumstances, should be considered as having been wilfully inflicted by defendant. What constitutes a wilful injury has been so recently fully discussed in this court that we do not feel justified in going over the subject at this time. Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333. There is no evidence here that the defendant saw the deceased in a place of peril and purposely or recklessly ran the train regardless thereof, nor that the train was operated with such ‘an utter disregard of the safety of persons using the highway as to indicate a willingness to injure them. The evidence shows merely that the speed of the train was in excess, of that allowed by law. That comes far short of showing-actual or constructive intent to injure. The act was negligence per se (Elliott, R. R. § 1095, note 1; Smith v. Milwaukee B. & T. Exchange, 91 Wis. 360), but not necessarily actionable negligence. To constitute an actionable wrong, the conduct must be the proximate cause of an injury, without any want of ordinary care on the part of the injured person contributing thereto. There are a large number of cases in the books involving injuries to persons by railroad trains while being operated contrary to law, and it will be found that such a circumstance is uniformly held to be evidence of negligence, not of intent, actual or constructive, to injure. Elliott, R. R. § 1204; White v. C. & N. W. R. Co. 102 Wis. 489; Schneider v. C., M. & St. R. R. Co. 99 Wis. 378. In the latter case, the point upon which appellant’s counsel mainly rely here was urged upon the attention of the court, viz., that where a person is injured by the act of another that is prohibited by statute, the latter is liable to the former for the resulting damages regardless of the question of contributory negligence. The unlawful act involved was that of running a railway train contrary to statutory regulations. The -court decided that the legal restraint put upon a railroad company, as regards the running of its trains, does not relieve a traveler upon the public ways from the duty to use ordinary care for his own safety; that such restraint goes no further than to render the company refusing or neglecting to submit to it liable to the penalty imposed, and to the charge of negligence as a matter of law in a civil action, leaving a person injured by reason of such negligence remediless the same as in any other case of negligence if he contributes to his injury by his own want of ordinary care. It seems that we need not say more in this case.

By the Court.— The judgment is affirmed.