Crouse v. Chicago & Northwestern Railway Co.

78 N.W. 446, 102 Wis. 196, 1899 Wisc. LEXIS 44

• Court: Wisconsin Supreme Court
• Decided: February 21, 1899
• Status: Published

Opinion

Winslow, J.

1. It was very strenuously insisted by the defendant’s counsel on the argument of the case that the evidence showed that the plaintiff was guilty of contributory negligence as a matter of law. In this connection the following rules of the railroad company, with which the plaintiff was familiar,- were put in evidence: “ Rule 128. Freight and special trains must not pass over any switch at a speed exceeding ten miles an hour.” “ Rule 410. The protection of the trains of the. company from accident during storms, and from danger of the track and bridges being washed out by sudden and heavy rains and rise in streams, espeoiaTby if they oeowr in the night, is of the greatest importance, and all employees in the operating department are directed to familiarize themselves with the following instructions, and carry them out strictly.” “ Rule 414. Conductors and engineers on the road, when overtaken between stations by such storms or indications of high water which will cause damage, will proceed with great caution, keeping their trains under complete control, and at such speed that they -can be stopped, after coming in sight of any obstruction or damage to track, in time to prevent accident. They will stop to examine bridges and culverts or other places liable to be damaged by high water, and, if they find any indication of danger from proceeding with their trains, will, on the arrival at the first telegraph station, call up the agent ■or operator, and report to the office of their respective division superintendents for instructions, and will not proceed until such instructions are received.”

The evidence showed that the plaintiff was an experienced engineer, forty-two years of age, and had run trains over this section of road for upwards of sixteen years. It is ■claimed that the plaintiff, by his own statement, shows that he was operating his train at a negligently high rate of speed as he approached this culvert, and that he violated rules 128 and 414, above quoted, and that by reason of such violation of rules the accident happened. We are not able to agree with the contention that contributory negligence was proven as matter of law. While it appears that there were very heavy rainstorms at or near Janesville during the afternoon and evening in question, it does not appear conclusively that the plaintiff knew that these storms were so severe or unusual in their nature as to call for the exercise of the precautions demanded by rule 414, above quoted. The plaintiff testified that an ordinary rain commenced to fall when his train was two miles south of Juneau, and that it rained while they were running about seven miles, and then stopped; that at Milton Junction he could see that it had been raining a little harder,' and there was water standing in the fields; that it was then raining, but not heavily, and continued to rain until they reached the washout. There is nothing inherently improbable in his testimony, nor is the testimony of opposing witnesses so conclusive on the subject as to render the plaintiff’s testimony incredible. It does not appear by undisputed testimony that the train “ was overtaken between stations by such storms or indications of high water ” as would require him to proceed with great caution under rule 414. There was testimony from which this fact might be well found, but it is not conclusively proven. Nor does it appear that there was any switch at, or in the immediate vicinity of, the washout, by reason of which the speed should have been reduced to ten miles an hour under rule 128.

2. It is argued that proximate cause is not found by the verdict, and hence that the judgment cannot be sustained. When a train plunges through an unsafe bridge, there is little room to speculate on proximate cause. If the bridge was constructed for the passage of heavy trains over it, and was negligently and unsafely constructed, the destruction of a. train and the loss of human life thereon must necessarily be contemplated by any reasonable man who built it. He cannot say that he did not anticipate an accident. Such a claim would be puerile. As well might a municipal corporation. which has left an open pit in a street defend on the ground that it could not anticipate that a traveler would fall into it. The question as to proximate cause was sufficiently answered when it was found that the viaduct was negligently constructed and unsafe, so that an ordinary rainstorm would wash it out, and was not properly inspected on the night in question, and that the plaintiff was injured, in consequence of the washout, without contributory negligence on his part.

3. In this connection it is urged that the verdict of the jury to the effect that the rainstorm bn the night in question was not an extraordinary and unprecedented storm is contrary to the evidence. Examination of the evidence, however, convinces us that the question was fairly one for the jury.

4. It is also urged that it was error to allow certain medical experts to answer a long hypothetical question, which, after stating in detail the particulars of the plaintiff’s injury, related at length the plaintiff’s symptoms, treatment, and physical condition from that time to the time of the trial, and upon this statement asked the witness what, in his judgment, was the cause of the plaintiff’s condition. To this question the witnesses each replied that the plaintiff’s condition was the result of the injuries received by him in the accident. There was no error in the admission of the question. A question precisely similar in form was approved in Selleck v. Janesville, 100 Wis. 157.

5. The defendant proposed twenty-three questions for the special verdict, and the court refused to give them, and submitted instead eleven questions. The refusal to give the questions asked is now assigned as error. Many of the questions asked by the defendant are lengthy and involved, and careful examination of the issues convinces us that the material issues of the case were all covered by the special verdict as submitted; hence it was not error to refuse the defendant’s request. What is said upon this general subject in Ward v. C., M. & St. P. R. Co., post, p. 215, will be found applicable here.

6. It appeared by the evidence that plaintiff’s wife had nursed the plaintiff for a year, and the plaintiff’s counsel argued to the jury that the plaintiff was entitled to recover the value of his wife’s services in so nursing him, and said, “ He is entitled to his wife’s services, and no one can take them from him.” To this remark the defendant objected on the ground that the plaintiff could not recover for his wife’s services, because it was her duty to nurse him. In ruling on the question the court said: “The defendant company is not entitled to the services of a man’s wife, and her services, belong to her husband, as disclosed by the evidence here. If she has been compelled to nurse him in consequence of the injury, I see no reason why it is not a proper charge.” To this remark exception was taken. We think there was no error in this ruling. The authorities are not uniform on the subject, but we think the court’s ruling sustained by the better reason. The defendant should not be allowed to profit by reason of the loving care of the wife. Varnham v. Council Bluffs, 52 Iowa, 698; Missouri, K. & T. R. Co. v. Holman, (Tex. Civ. App.), 39 S. W. Rep. 130; Brosnan v. Sweetser, 127 Ind. 1.

7. The plaintiff offered in evidence the annuity tables found in the Revised Statutes of Wisconsin (Stats. 1898, p. 2461), and the same were received in evidence under objection and exception. Mr. Fethers, in his argument to the jury, after computing the amount Grouse earned in a year and adding to it the annual cost of nursing and physician’s services, making the whole amount $1,798, spoke as follows: “We have, then, under the lowest figure given by the testimony, a money loss of $1,798 a year to George Grouse,— $1,798 a year cash. Under the annuity tables, taking the lowest figure,— and you are entitled, under the testimony in this case, to consider if he will not live on beyond it, but taking that low figure according to the annuity tables, his money loss would be $19,241.59. At forty-one — say you start there — he was born on the 8th of January, I think, and he was injured on the 26th of July, so his nearest birthday would be nearer forty-one than to forty, and you get about forty and one-half he was then; but say that his nearest birthday is forty-one — his actual money loss would be $19,039.12. The difference between the two years, Avhich-ever is considered, is only $200. In other words, more than $19,000, considered from the standpoint of the expectancy of the annuity tables, in connection with the other testimony, .would be his actual money loss should he live to that time.” Counsel for defendant objected to the argument, and asked the court to instruct the jury that it was an improper argument to make on the question of damages, and the court replied: “I think that is proper. I overrule the objection.” To the ruling of the court the defendant exeej>ted.

Mr. Jeffris, in his argument to the jury, said, in respect to these annuity tables, as follows: “After this accident, Mr. Crouse may live ten, twenty, thirty, yes, he may live forty years, but we are not entitled to forty years’ pay for his service and forty years’ time. But the supreme court has laid down the rule upon which these things are figured on their present purchase value. If a man is paid the cash, it is limited to something like ten years.” To the remark of Mr. Jeffris counsel for defendant objected upon the ground that it was an improper argument to make to the jury, and asked the court to instruct the jury that they were not to pay any attention to it. Thereupon the court ruled as follows: “ Court: Well, I shall not instruct the jury any such thing.” The defendant thereupon excepted to the ruling of the court, and the court then said of its own motion: “Yes, I instruct the jury that his remarks in regard to the annuity tables, I think, are proper.” To such remark and ruling of the court the defendant excepted. In view of the fact that the annuity tables were admitted in evidence, counsel for defendant requested the court to charge the jury as follows: “The annuity table received in evidence was received upon the theory that it would afford you some aid in determining the amount of damages. The table is not a rule for you to follow in assessing the damages. The makers of the annuity table did not take into account several things important in this case, namely, that the man injured might die before the end of his expectancy of life of some disease not caused by the injury; that he might not be willing to work to the end of his expectancy of life; that he might, before the end of his expectancy of life, be rendered incapable of work by disease not caused by the injury, and that he might be rendered incapable of work by reason of other accidents and injuries.” This instruction was refused, and defendant excepted.

While the authorities are not entirely uniform on the question of the admission of standard tables showing the expectancy of life in injury cases where death has not resulted, it seems that the weight of authority is in favor of their admissibility. See note to Union P. R. Co. v. Yates, 40 L. R. A. 553, where the authorities are collated. This court held the annuity tables admissible in McKeigue v. Janesville, 68 Wis. 50 (which was a death case), “ not as forming a legal basis upon which the jury might determine the probable length of the life of the deceased, but as evidence which the jury might consider with all the other evidence in the case upon that point.” We see no very good reason why such tables shorild be admissible in a death case upon the question of probable length of life, and not in a case of personal injury, where damages for permanent injuries are sought. In both cases the question of probable length of life is an important one, which the jury must consider if they find for the plaintiff. It is true, the annuity tables are more favorable to the defendant than the tables of expectancy of life, but of this the defendant cannot complain. But it must be very certain that such tables do not form, a mathematical basis for the estimation of damages as they were used with the direct sanction of the court in this case. You cannot take the amount a man was earning when injured, and multiply it by the figures in an annuity table, and thus reduce his damages to exact figures by the -rules of arithmetic. This was done in this case, and the court said it was proper, and the verdict of the jury is so near the amount so figured out as to give ground for believing that the jury considered it as a rule to follow. Of course, there is no such rule. There are many other elements in the problem which must be considered. The plaintiff’s ability to labor would almost certainly decrease with years, or by natural disease, or he might not desire to continue in his arduous employment. So we think the court erred in approving the mathematical rule laid down by the plaintiff’s counsel, as well as in refusing the instruction offered by the defendant upon the subject, Hunn v. M. C. R. Co. 78 Mich. 513; Harrison v. Sutter St. R. Co. 116 Cal. 156; Goodhart v. Pa. R. Co. 177 Pa. St. 1, 5 Am. & Eng. R. Cas. N. S. 364.

8. In connection with each of the second, third, sixth, and eighth questions of the special verdict the defendant requested an instruction, in substance, that the burden of proof in each case rested upon the plaintiff, and that they must be satisfied to a reasonable certainty by the preponderance of the evidence, in order to answer the question in the affirmative. These instructions were all refused, nor was the substance of them given. Certainly it was applicable to the second question,— as to whether the culvert was negligently constructed and maintained,— and should have been given. But it is claimed that the rule as to burden of proof as to all these questions has been changed by the terms of sec. 1, oh. 220, Laws of 1893 (now subd. 1, sec. 1816, Stats. 1898). This statute provides for a recovery where a railroad employee, without contributory negligence, is injured by a defect in any locomotive engine, car, rail, track, machinery, or appliance required by said company to be used in and about the business of such employment, when such defect could have been discovered by reasonable and proper care, tests, and inspection; and proof of such defect shall be presumptive evidence of knowledge thereof on the part of the company.

While we think the word track, in this law, clearly includes the .roadbed upon which the track rests, we do not see how the law affects the question of burden of proof as to the second question. That question inquires whether there were original defects in the culvert before the washout, Until the plaintiff has shown that there were such defects, the law does not begin to apply. He must first show the defects, and must necessarily show them by preponderance of the evidence, and then the presumption of knowledge of the defect steps in. As to questions 6 and 8, the argument is somewhat different, but still we think the instruction should have been given. By answers to these questions the jury were to say whether the washout could have been discovered by defendant’s employees by the exercise of reasonable care in time to prevent the accident, and whether the track walker was negligent in not properly inspecting the track. As to the sixth question, doubtless the law raised a presumption, on a showing that the washout existed, that the company had knowledge of it; but this was a mere disputable presumption of fact, and when it appeared that the washout had occurred within a few hours, and that the company in fact had no notice, the question whether the washout had existed so long under the circumstances that the company, by proper inspection, should have learned the fact, or was negligent in not knowing it, was still a question for the jury, and one upon which the burden of proof was still upon, the plaintiff. The law raised a presumption of knowledge of the washout, but not a presumption of negligence from want of knowledge. These remarks apply to the eighth question with equal force.

9. Upon the question of damages the court was requested to charge that the fact that the plaintiff was married was not to be considered in arriving at the amount of the damages, but refused. This charge should have been given.

10. One sentence of the charge seems to convey the idea that it was an absolute duty resting on the railway company to make the culvert safe, thus making the company an insurer. It seems probable from the contest that this was not the intentional, but simply an inadvertent, use of language, but we call attention to it because there must be a new trial. Reasonable and ordinary care and prudence to make it safe, considering its uses and purposes, is the duty imposed on the company, and which it cannot delegate. It does not insure safety.

A general verdict was rendered under a long general charge in connection with the special verdict: While no specific objection appears in this case to the submission of such general verdict, attention is called to the discussion of the propriety of this course in the case of Ward v. C., M. & St. P. R. Co., post, p. 215. What is there said is precisely applicable to the present case.

We have found no other questions which seem necessary to be discussed.

By the Court.— Judgment reversed, and action remanded for a new trial.

BaRdeeu, J., took no part.

The appellant moved to set aside the clerk’s taxation of costs.

John T. Fish, for the motion.

O. H. Fethers, contra.

The following opinion was filed April 4, 1899:

Bardeen, J.

This is a motion to review the clerk’s taxation of costs. The appellant prevailed on the appeal. The respondent objected to two items in appellant’s cost hill, as follows:

Paid for printing case .'.. §282 00

Paid for printing brief. 72 00

The clerk disallowed both items, on the ground that appellant had not complied with Rules Till and IX of this court. The objection to the first item was that the printed case violated Rule Till, in that it contained the bill of exceptions in full, and not “ so much of the record . . . as may be necessary to a full understanding of the questions presented for decision,” and for the further reason that the pages of the record were not referred to by numerals on the left-hand margin of the page, under the words “ Page of Record.” The second item was objected to on the ground that the appellant’s brief did not comply with that part of Rule IX which says, “Each statement and proposition therein which is based upon the record must refer to the page of the record as contained in the printed case upon which the same is based.” Appellant admits that both case and brief are susceptible to these objections, but it is said that, inasmuch as the entire bill of exceptions has been printed, the penalty of disallowing costs upon failure to (comply with these provisions ought not to be inflicted. The fact that it is noted in the case, at the beginning of.the alleged “Abstract of the Bill of Exceptions,” under the words “ Page of Record,” that what follows may be found on pages 41 to 365 of the record, does not relieve from this infirmity. The purpose of the rule is to enable the court to refer to the record with certainty and dispatch. "With the case as printed, it is impossible to do so. Ve have tested it in that regard, and the result is vexatious. Testimony in the printed case cannot be found in tbe record, except after considerable search and delay. The business of the court is so urgent and pressing as to require all possible aids in the consideration of cases. So imperative are such demands, that a strict adherence to the rules is of the utmost importance. "We cannot relax from their rigor without destroying their purpose. It is the certainty of their enforcement that makes attorneys careful. In this case counsel made very little effort to abstract the record. Page after page is taken up with figures as to the height of water above the dam at Janes-ville. Several exhibits are printed at length that could have been abstracted or condensed into one twentieth of the space actually covered. Testimony of several witnesses is printed in full, the greater part of whiph could have been omitted as having no bearing on the real points involved. It frequently happens in the trial of cases at the circuit that a vast amount of rubbish and immaterial matter gets in, that has no bearing upon the questions involved on an appeal. Hence, as the rule says, the printed case should contain an abstract or abridgment of so much of the record as may be necessary to a full understanding of the questions presented for decision, and no more. A more lively appreciation of this rule would reduce the volume of printed matter submitted for our consideration, and somewhat lighten our labors.

The objections to the brief really rest upon the infirmities in the printed case. Neither case nor brief having been prepared in conformity to the • rules named, the clerk very properly disallowed the items sought to be taxed therefor.

By the Court.— The motion to retax the costs is denied, i with $10 costs, and the taxation by the clerk is affirmed.