Schwind v. Chicago, Milwaukee & St. Paul Railway Co.

121 N.W. 639, 140 Wis. 1, 1909 Wisc. LEXIS 229

Opinion

Dodge, J.

Appellant’s first contention is that the locus in ■quo was in fact depot grounds, although he assigns no error either upon the answer to the first question in the special verdict or to the refusal of the court to set it aside. Disregarding such omission, however, there was much evidence introduced with reference to the use which was made of the various tracks as well as of the location of the place of injury with reference to any station, and the jury were aided by a view in passing on accessibility to the public for loading freight. The question whether a given place is or is not de pot grounds, within the meaning of sec. 1810, Stats. (1898), is ordinarily a question of fact. Grosse v. C. & N. W. R. Co. 91 Wis. 482, 65 N. W. 185; Cole v. D., S. S. & A. R. Co. 104 Wis. 460, 80 N. W. 736; Habenicht v. C., St. P., M. & O. R. Co. 126 Wis. 521, 105 N. W. 910. In the present case the evidence quite clearly was such that the jury within their province might well have found in the negative as they did.

The next material contention of the appellant is advanced under the form of an attack upon the sixth finding that the plaintiff’s injury was caused in whole or in part by the absence of a fence. Counsel supports his contention mainly by cases decided under very different statutes and involving radically different principles and reasons from those applicable to our statutes: statutes which merely command railroad companies to fence their rights of way, and under which it is held that failure to do so, being a breach of the law, is an act of negligence. Such cases are entirely analogous to the decisions of this court under statutes prohibiting excessive rates of speed and requiring ringing of bell. Sec. 1809, Stats. (1898); Ransom v. C., St. P., M. & O. R. Co. 62 Wis. 178, 22 N. W. 147; Piper v. C., M. & St. P. R. Co. 77 Wis. 247, 46 N. W. 165. The principle there involved is merely that the failure of the statutory duty constitutes negligence from which the courts start with the logical deduction that for injuries proximately caused thereby, and not contributed to by the negligence of the person injured, the company should be liable. In the application of that rule there has been much discussion whether proximate causal relation can exist between the absence of a fence and the intentional entry upon railroad grounds by one in the full exercise of his faculties and competent to use judgment, choice, and volition, as in the two cases cited by appellant from Minnesota. Fezler v. W. & S. F. R. Co. 85 Minn. 252, 88 N. W. 746; Schreiner v. G. N. R. Co. 86 Minn. 245, 90 N. W. 400. It was in the application of these same principles that Schmidt v. M. & St. P. R. Co. 23 Wis. 186, was decided, where it was held, under a statute not expressly imposing liability for injury tó persons, that the absence of fence might be proximately causal •of an injury to an infant too young to exercise judgment or volition. All such cases are, however, beside the question presented by our present sec. 1810, Stats. (1898), for that, in addition to commanding the railroads to build a fence, expressly provides that in its absence “such road shall be liable for all damages done to cattle, horses or other domestic animals, or persons thereon, occasioned in any manner, in whole or in part, by want of such fences or cattle-guards.” An injury may well be occasioned in whole or in part by the absence of a fence, although it may not be proximately caused thereby. It is enough if such omission gives occasion for entry on the place of injury. Curry v. C. & N. W. R. Co. 43 Wis. 665, 616.

It has already been decided that proximate causal relation, including the element of reasonable anticipation, is not necessary, but merely that the railroad’s omission shall be causa sine qua non. Atkinson v. C. & N. W. R. Co. 119 Wis. 176, 96 N. W. 529; Hayes v. Mich. Cent. R. Co. 111 U. S. 228. Also, that contributory negligence of the respondent is no defense. Quackenbush v. W. & M. R. Co. 62 Wis. 411, 22 N. W. 519; S. C. 71 Wis. 472, 37 N. W. 834. The purpose of this statute was to cast upon the railroads absolute liability for injuries to cattle whose entry upon the tracks was made possible by absence of the prescribed fences, and when it was amended in the revision of 1878 by the addition of “persons,” the extension of the same purpose to human beings was obvious.

The question to be decided in this case, therefore, is not whether the injury to this plaintiff was proximately caused by the absence of a fence, but whether, in the exact language of the statute, it was “occasioned in any manner, in whole or in part,” by such absence. We need not decide whether the deliberate and intentional entry upon a railroad right of way and tracks by an adult fully cognizant of all the conditions, and with no circumstances of confusion or inadvertence, might be held, as matter of law, not occasioned by the absence of a fence, for that case is not presented, and we need not theorize as to whether presence of a fence would have availed to counteract such deliberate purpose. On the other hand, if, by reason -of storm, inability to observe, or lack of knowledge of the exact location, even an adult of full intelligence should wander from a highway onto an adjoining railroad right of way, it would be difficult to discover any reason why he might not come within the intent and purpose of the act as clearly expressed by its unambiguous words. In the case of children other elements, however, are presumptively present. They lack in greater or less degree, according to age, development, and intelligence, the pertinacity of purpose and the soundness of judgment of the adult. Their conduct is often controlled by propensities, temptations, curiosities, and obstacles which would not materially affect that of the adult. This consideration has been recognized by this-court in many cases. Meibus v. Dodge, 38 Wis. 300; Busse v. Rogers, 120 Wis. 443, 98 N. W. 219; Compty v. C. H. Starke D. & D. Co. 129 Wis. 622, 109 N. W. 650. AH these childish tendencies must be taken into account in weighing probability of childish action. In the light of them, and of the fact that this boy was on his way from Bremen street eastward to Humboldt avenue, a distance of 400 or 500 feet, and was confronted by the muddy road and tempted by the better pathway near the railroad tracks, although he in a measure appreciated and understood the danger of the latter course' and was able to exercise some measure of intelligent judgment, is it certain that, if his entry upon the latter course had been obstructed by a substantial fence such as the law requires, he would have persisted in overcoming that obstacle,. instead of pursuing the safer pathway along Reservoir avenue, or even conceived the plan? We think not. The situation presented an opportunity, for inference by reasonable men familiar with human and boyish tendencies and with complete knowledge of plaintiff’s intelligence and maturity, such as the jury were qualified to draw, and we cannot say as a matter of law that his deviation onto the railroad grounds would so certainly have occurred even had such fence been interposed that the court should have answered the sixth ques-. tion in the negative. The mere absence of a required obstacle or warning has often been held to support an inference that its presence would have affected conduct even of mature persons; much more justifiable is such inference in case of children or animals. Schmidt v. M. & St. P. R. Co. 23 Wis. 186; Schrier v. M., L. S. & W. R. Co. 65 Wis. 457, 459, 27 N. W. 167; Blomberg v. Stewart, 67 Wis. 455, 30 N. W. 617; Palmer v. N. Y. C. & H. R. R. Co. 112 N. Y. 234, 19 N. E. 678.

Error is assigned upon the charge under the sixth question because the court told the jury to consider whether a fence would have “prevented or tended to prevent” plaintiff’s entry on right of way. In this we discover no error. The tendency of a fence to prevent the entry was proper to be considered in answering the question whether plaintiff’s injury was caused by absence of such fence as the law requires. Of course defendant would not be liable merely because of such tendency alone, but no charge to that effect was given.

The findings that the locus was not depot grounds, and that absence of fence caused the plaintiff’s injury, are sufficient to support judgment for plaintiff,. and we need not discuss any errors assigned or committed in connection with other forms of negligence alleged and found against defendant, or with the question of plaintiff’s contributory negli: gence.

Contention is made that the verdict, $10,000, is excessive. While it is larger than we might approve as an original proposition, yet it is not substantially larger than courts have often sustained for similar or equivalent injuries. Schmidt v. M. & St. P. R. Co., supra; Berg v. C., M. & St. P. R. Co. 50 Wis. 419, 7 N. W. 347; Nadau v. White River L. Co. 76 Wis. 120, 43 N. W. 1135; Ballzer v. C., M. & N. R. Co. 89 Wis. 257, 60 N. W. 716; Yerkes v. N. P. R. Co. 112 Wis. 184, 88 N. W. 33; Chicago Anderson P. B. Co. v. Rembarz, 51 Ill. App. 543. It has been held not excessive by the trial court, whose opportunity for knowledge is better than ours.' We cannot feel justified to disturb it.

By the Court. — Judgment affirmed.