Dorsey v. Phillips & Colby Construction Co.

42 Wis. 583

• Court: Wisconsin Supreme Court
• Decided: August 15, 1877
• Status: Published

Opinion

RyaN, O. J.

I. The nonsuit was properly denied. The case was one for the jury on all the points made.

First: of the appellant's negligence.— If a uniform custom of railroad companies to use structures unnecessarily dangerous to persons employed in operating trains, bad been pi’oved, we should hesitate gravely before holding that the custom could excuse the danger. A positive acquiescence, scienter, of one so employed, might indeed take away his right of action for inj ury incurred by such a structure. But there is public as well as private interest. The operation of railroad trains is essentially highly dangerous, and it is a duty of railroad companies, too plain for discussion, to use all reasonable skill to mitigate, tolerating nothing to aggravate, the necessary danger. This is not merely a private duty to individuals concerned, but a public duty to the state, concerned in the welfare of its citizens. And no custom, however uniform or universal, which unnecessarily exposes railroad employees to loss of life or limb, would seem to satisfy a duty which may be regarded as an implied condition of their charters. We use the word unnecessary, advisedly; distinguishing necessity from convenience. A convenience may be so great as to be regarded as a practical necessity. But a convenience merely to lessen a little the labor of driving cattle into cars can hardly rank as a necessity, or excuse such proximity of cattle chutes to the track as to jeopardize life and limb of persons operating trains.

But we need not pursue this inquiry. For a careful examination of the evidence has satisfied us that no such custom is established; much if not all of the evidence on both sides tending to show that no uniform custom exists. It rather appears to be a fair conclusion from the evidence, as far as it goes, that cattle chutes are built at varying distances from the track, according to varying.notions of convenience of use in driving cattle into cars. So far as a custom is involved in the case, it was a question for the jury. The evidence affords no warrant for holding, as matter of law, that the custom relied on by the appellant is established.

And there certainly was evidence to go to the jury, of the dangerous proximity to tie railroad of the cattle chute in question; enough, in our judgment, to warrant the finding that it was unnecessarily dangerous. We do not propose to review the evidence. But there is a presumption of fact running through the whole printed case, that the structure was positively dangerous to operatives on moving trains, whose duty might take them to car ladders on that side; and that its dangerous relation to the track was due to one of two causes. It may be that the cattle chute was constructed with a view to the exclusive use of cars having ladders on the ends only; in which case it might have involved no special danger. In that view, it might have become dangerous by the use of cars having ladders on their sides only. The use of cars of the latter description, assuming the consequent danger of the cattle chute, made it an immediate duty to remove the cattle chute or change its structure. It may be that it was built with a view to the use of cars of both descriptions. In that case, its dangerous relation to the track was due to a paltry convenience, furnishing no color of legal excuse. A greater distance from the track might have made it more troublesome to load cattle from it, but would have insured operatives of the road from danger of life and limh. Human life is too precious in the eye of the law to be so lightly hazarded. Railroad companies owe a higher measure of duty to those who operate their trains, and to the public.

Second: of the respondent's acquiescence. — If he knew, or ought reasonably to have known, the precise danger to him, in the course of his employment, of the cattle chute in question, and saw fit, notwithstanding, to continue in his employment, he might be held to have assumed the extraordinary risk, as well as the ordinary risks, of his service. The authorities cited by the learned counsel for the appellant all agree in the general proposition. But it appears to us that this consequence of acquiescence ought to rest upon positive knowledge, or reasonable means of positive knowledge, of the precise danger assumed; not on vague surmise of the possibility of danger. And there might be serious difficulty in applying the principle to a case like this.

The safety of railroad trains depends largely upon the exclusive attention of those operating them, to the track, and to the trains themselves. It is not for the interest of railroad companies, or of the public — with like, if not equal, concern in the safety of trains,— that persons so employed should be charged with any duty or necessity to divert their attention. And it appears to us very doubtful whether persons operating railroad trains, and passing adjacent objects in rapid motion, with their attention fixed upon their duties, ought, without express proof of knowledge, to be charged with notice of the precise relation of such objects to the track. And even with actual notice of the dangerous proximity of adjacent objects, it may well be doubted whether it would be reasonable to expect them, while engaged in their duties, to retain constantly in their minds an accurate profile of the route of their employment, and of collateral places and things, so as to be always chargeable, as well by night as by day, with notice of the precise relation of the train to adjacent objects. In the case of objects so near the track as to be possibly dangerous, such a course might well divert their attention from their duty on the train, to their own safety in performing it. Notwithstanding some things said in some cases cited for the appellant, we should be rather inclined to think that, in the absence of express notice of immediate danger, employees operating trains may perform their duties under an implied warrant that they may do so without exposing themselves to extraordinary danger; that is, danger not necessarily incident to the course of their employment.

Be that as it may, the question can not well be considered as arising here. Eor though it certainly appears that the respondent knew of the general relation of the cattle chute to the track, it does not appear that he knew, or had such means of information as would charge him with knowing, its precise relation to the track, its distance and its danger. There is indeed evidence tending to show that he had some impression of its dangerous proximity; perhaps not more than the vague idea of danger suggested by adjacent objects generally. Even this we understand him to deny. The court could not say, as matter of law, that he knew of the extraordinary danger, and continued his employment at his own risk of it. There was enough in the evidence to make his knowledge and acquiescence a proper question for the jury.

Third: of the respondent’s contributory negligence. — “ What constitutes negligence, or that want of care on the part of the person receiving the injury, which deprives him of any rem.edy, and neutralizes, as it were, the wrong of the party by whom the injury is inflicted, is a question depending on various circumstances. What may be negligence under some circumstances and conditions, may not under others. As observed by counsel, it is not a fact to be testified to, but can only be inferred from the res gestee — from the facts given in evidence. Hence it may, in general, be said to be a conclusion of fact to he drawn by the jury under proper instructions from the court. It is.always so where the facts, or rather the conclusion is fairly debatable, or rests in doubt. It is only where there is an entire absence of evidence tending to establish the case, or where, as in Achtenhagen v. Watertown, 18 Wis., 331, the negligence of the party injured or killed is affirmatively and clearly proved by the plaintiff, so as to admit of no doubt or controversy, that a nonsuit may properly be ordered.” Langhoff v. Railway Co., 19 Wis., 489.

Under this rule, it appears quite manifest that the court could not hold the respondent, as matter of law, guilty of contributory negligence. It was a question for the jury whether, under all the circumstances, he could have avoided the accident by the exercise of reasonable care. His general knowledge of the position and danger of the cattle chute, his means of knowledge, at the time, of it's nearness to him, his necessity of being where he was whert he was injured, and his care or want of care for his own safety, under all the circumstances, were proper questions for the jury.

There is evidence tending to show that all collateral objects which could make the ascent and descent of the car ladders dangerous, were on the outside of the track, and that the inside was free from such objects. Such adjacent objects on the outside certainly implied possible danger, rendering the inside of the track safer. And it is remarkable that persons engaged in operating trains there should not confine themselves to that side. It might perhaps he difficult to account for it, except upon the view that familiar dangers lose their terror. But there is also evidence tending to show that the respondent could not well have discharged the duty in which he was engaged, on the inside ladder, at the other end of the car. Under a sudden pressure of duty, we cannot say that the respondent was bound to exercise the same measure of judgment which we do now in reviewing his conduct. That would appear to require of him a deliberation and circumspection which the necessity of his duty might preclude. “ What may he negligence under some circumstances and conditions, may not under others.” The question of his negligence “ is fairly debatable, and rests in doubt.” It was submitted to the jury, and there certainly is evidence to support the verdict. We cannot reverse their conclusion, even though we were inclined to come to a different one.

II. The difficulty which pervades the views taken for the appellant throughout, enters into the only instruction asked. It goes upon the theory that if the respondent had, in the course of his employment, sufficient opportunity to know the general position of the cattle chute, he was charged with knowledge of its dangerous character. We have sufficiently indicated our dissent from this. We think that it is contrary to the experience of human life, that one, knowing generally of a thing, without opportunity of ascertaining its precise relations and conditions, is to be charged with notice of them. And the instruction, which goes upon general knowledge only, and ignores all opportunity of accurate knowledge, to charge the respondent wdth notice of the dangerous proximity of the cattle chute to the track, was properly refused.

III. Exceptions were taken to two passages of the charge, which were made the subject of criticism here. Either would be sufficiently erroneous, considered by itself, to reverse the judgment. Rut it is our duty to consider them in connection with the whole charge, and to determine whether they could mislead the jury. This court always reverses upon a charge correct in law, but so given that it might mislead the jury; and affirms upon a charge incorrect in itself, but so given or qualified that it could not mislead the jury.

Th^ first passage of the charge in this case to which objection is taken, is the statement that the employment and injury of the respondent at the timé and in the manner claimed by him, were admitted by the appellant. It is claimed that this imports the appellant’s admission of the respondent’s right of recovery. But the charge proceeds immediately to state the grounds of the defense at large. And, taken in connection with what follows, the sentence complained of imports no more than that the respondent’s employment and his actual injury were not denied upon the trial, as appears to have been the truth. We cannot doubt that it must have been so understood by the jury.

The second passage is to the effect that, if the respondent had no knowledge, or means of knowledge, of the cattle chute and its danger, he must recover. The learned judge was explaining to the jury what knowledge of the cattle chute was necessary to charge the respondent with acquiescence in its danger. Elsewhere in the charge, all the conditions necessary to the respondent’s recovery are stated. And, in the light of the whole charge, the passage in question signifies but this: that, on the question immediately under consideration, the want of knowledge on the part of the respondent stated would not, so far, defeat his right to recover.

Neither passage could have misled the jury. The general charge is too full and too clear.

The charge of the court below, quite full on other points, contains no very specific instruction on the doctrine of contributory negligence. We must confess that, if the doctrine of contributory negligence had been given to the jury, the verdict would have been more satisfactory to us. But if the appellant had desired it, it was incumbent bn it to pray for proper instruction. And we cannot reverse a judgment because, on some point, the charge is not so full as might have been desirable.

IV. The verdict of the jury gave us more trouble than the rulings of the court.

The statute authorizing special verdicts appears designed to guard against willful or mistaken verdicts, and to enable the court to review the precise grounds on which verdicts are found. And we have lately, more than once, reversed judgments upon apparently willful or evasive verdicts.

In the verdict before us, the jury found that the respondent did not know of the dangerous proximity of the cattle chute to the track. They also found that he did not know, and had no means of knowing, “ the existence and location of the cattle chute in question, with reference to the side track.”

If this answer could import that the respondent had no general knowledge, it would be clearly inconsistent with the evidence. And the finding that he had no knowledge of the danger of the cattle chute might, in that case, well rest upon the finding that he had no knowledge of it at all. If such were the construction of the verdict, it could not be supported. And we confess that such was our first impression.

If the question put to the jury had been confined to the location of the structure with reference to the track, we might probably Rave bad nó difficulty in bolding that the question called only for bis knowledge of the general relation of the cattle chute to the track; the word, location, not necessarily implying their exact relation. The question would then have had substantially the same meaning as if it had inquired only of the existence of the cattle chute in reference to the track. But both words are used, and effect must be given to each. Location, by itself, as used in the question, would have imported substantially the same as existence, by itself. Each word being used in the question, must be taken in a different sense from the other; both words implying a greater extent of knowledge than either alone. G-eneral location is implied in the question by the word, existence; and the word, location, used with it, must signify more than mere existence, more than general location,, in reference to the track. It must mean exact location, or distance from the track. We can see no other distinctive meaning to be given to it as it is used.

This was, presumably, the construction of the jury, who could hardly have found that the respondent had not the general knowledge to which he himself frankly testified. In this view, each answer is almost equivalent to the other.

- We did not understand it to be claimed, upon the argument, that the questions considered bore a different construction. They gave us, however, the greatest doubt we had of our duty to, affirm the judgment.

We are glad to acknowledge our obligation to counsel on both sides for thorough preparation and. intelligent argument of this appeal, leaving little labor of investigation for us.

By the Court. — The judgment of the court below is affirmed.