Schendel v. Chicago & Northwestern Railway Co.

133 N.W. 830, 147 Wis. 441, 1911 Wisc. LEXIS 246

• Court: Wisconsin Supreme Court
• Decided: December 5, 1911
• Status: Published

Opinions

Vinje, J.

Tie main evidence relating to the negligence of the plaintiff and the-defendant is set ont in the foregoing statement of facts. As the case must he remanded for a new trial, we purposely forbear to comment upon it further than to say that the trial court properly changed the answer to question 3 from No to Yes, and that the questions whether or not the defendant’s negligence was greater than that of plaintiff and contributed in a greater degree to the injury cannot he answered as a matter of law by the court. Question number 7 was superfluous. Question number 2 related to defendant’s negligence, and question number 3 to that of the plaintiff. Had the trial court followed the statute (sec. 1816, Stats.: Laws of 1907, ch. 254) and submitted the question, first, If your answers to questions 2 and 3 are Yes, then was the negligence of the defendant greater than the negligence of the plaintiff ? and, second, If your answers to questions 2 and 3 are Yes, then was the negligence of the defendant greater as a contributing cause to the injury than that of the plaintiff ? instead of requiring the jury to answer-questions 4, 5, and 6 contingent upon their answering only one question in a certain way, we should not have had the unfortunate situation that now confronts us. Jensen v. Wis. Cent. R. Co. 145 Wis. 326, 128 N. W. 982. As the verdict was framed, the jury were obliged to compare the negligence of the defendant with that of the plaintiff even though they found the latter was guilty of no negligence at all. The fifth question required them to do that, and they did. Can such a comparison be said to be a comparison of negligence in any judicial sense? A comparison of negligence within the contemplation of law implies the exercise of judgment,, and hence room for its exercise; that is, it must relate to conditions where there is at least some necessity for the weighing of facts and the application of the reasoning faculties of the mind to the subject matter of comparison. It does not mean the mere supplying of a fixed mathematical answer. True, a comparison of something with nothing may technically be said to be a comparison. Ent the result is certain and absolute. It does not need the exercise of judgment or the weighing of evidence to determine it. When it is ascertained that one of the quantities to be compared is a plus quantity and the other is zero, mathematical laws irrevocably fix the result of the comparison, and no jury can vary it. The axiom that something is greater than nothing needs no confirmation by a jury and is subject to no change at their hands.

But if it be conceded that the jury did make a comparison, it is evident the comparison was not made upon a right basis. The jury made it upon the basis that the plaintiff was free from negligence. The court properly said he was not, and the jury never made a comparison upon that basis — the only correct basis upon which it could be made. Nor can it logically be argued that the jury compared the conduct of the plaintiff with that of the defendant, and found the latter to constitute the greater negligence. Such an argument assumes that a comparison was necessary and possible of execution in an impartial manner. We can indulge in no presumption that the jury did a useless and meaningless thing, or that they did anything more than the verdict submitted to them and the instructions of the court required, or more than existing conditions permitted. Having found negligence on the part of the company and no negligence on the part of the plaintiff, it required no comparison of conduct or negligence to answer the question, “Was the negligence attributable to the company greater than the negligence of the plaintiff?” Their previous findings rendered such comparison useless, absurd, and one-sided only. How could they have returned a negative answer to the question without convicting themselves of the absurdity of saying that nothing was greater than something? The fact that it was impossible consistently to answer the question in the negative shows conclusively tRat no comparison such as the law contemplates was made. TRe only rational answer tRat conld Re returned to tRe question, in view of tRe findings of tRe jury, was an affirmative one. Hence to say tRat a comparison of eitRer negligence or conduct was made, wRen tRe conditions under wRicR it occurred plainly admitted of only one rational answer, is equivalent to saying tRat no comparison was in fact made.

It may Re suggested tRat tRese distinctions are tecRnical and tRat it is a refinement upon language to make them. But we think not. After tRe court Rad cRanged tRe answer to question 3 from No to Yes, tRe only controverted questions toucRing tRe liaRility of tRe defendant were wRetRer or not its negligence was greater tkan tRat of plaintiff and contributed in a greater degree to Ris injury. TRe rigkt to Rave tRese questions determined Ry tRe jury, wken tkey could not Re answered as a matter of law by tRe court, was a substantial rigkt of wkick neitker party skould be deprived. Nor should eitRer party be debarred from tRe right to Rave suck comparison made under conditions rendering a finding in Ris favor possible. TRe statute expressly recognizes the right of the jury to pass upon these questions by providing that in all cases under it the question of negligence and contributory negligence shall be for the jury, though such provision is only declaratory of the law that would otherwise govern. In every action properly triable by a jury, disputed questions of fact, that cannot be decided by the court as matter of law upon the evidence as it stands, must be found by the jury unless there is a waiver of the right to Rave them so found. TRe court, therefore, after finding the plaintiff guilty of contributory negligence, should Rave submitted to the jury the questions of comparative negligence and comparative contributing cause, if the jury Rad not then been discharged. If it Rad, a new trial should Rave been granted.

Sec. 2858m, Stats. (Laws of 1901, ch. 346), does not apply to the situation before us. Tbe verdict as submitted by tbe court called for a comparison of negligence and contributing cause, and if tbe jury bad found plaintiff negligent a valid comparison would have been made. Uo controverted matter of fact was omitted from tbe verdict. As submitted, neither party could be held to bave waived a finding by tbe jury on tbe questions of comparative negligence and contributing cause. Tbe defect in tbe verdict became apparent when tbe jury, contrary to tbe undisputed evidence, absolved plaintiff from negligence, and yet were required by question 5 to compare plaintiff’s negligence with that of the defendant. Special verdicts should be so drawn that, no matter what responsive answer is returned to any question, a judgment in favor of one party or tbe other can be based upon tbe verdict as returned.

Three additional errors relating to instructions and tbe refusal to submit certain questions are assigned by tbe defendant. They are not well taken, and are of such minor importance that we do not deem it necessary to discuss them.

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