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

136 N.W. 337, 149 Wis. 590, 1912 Wisc. LEXIS 176

• Court: Wisconsin Supreme Court
• Decided: May 14, 1912
• Status: Published

Opinions

ViNJE, J.

It is claimed by defendant that Geiger was not guilty of actionable negligence. The jury found that the deceased gave him a signal to stop the moving cars after the car was poled the last time, and that he was guilty of a want of ordinary care that contributed to produce the injury. Such want of ordinary care was the failure to transmit the signal to stop the cars. There is evidence to sustain the finding that a signal to stop the cars was given to Geiger by the deceased and that it was not transmitted by the former to the engineer. The failure to transmit such a signal, under the circumstances, must be deemed a sufficient basis for a finding that Geiger was guilty of actionable negligence. But the defendant argues that, conceding Geiger was guilty of negligence, the negligence of the deceased was greater and contributed in a greater degree to produce the injury, and therefore the court should have granted the motion to direct a verdict for the defendant. The jury found Geiger’s negligence was greater than that of the deceased, but no finding was made as to whose negligence contributed in a greater degree to produce the injury, though the defendant asked that such a question be submitted.

The evidence shows that the cars to be coupled were equipped with automatic safety appliances permitting them to be coupled by impact without the necessity of men going between the ends of the cars. The coupling could be, and usually was, done by raising a lever at the comer of the car with one hand, thus lifting the pin, and reaching in with the other hand and opening the knuckle. In our view of the case, the fact that the cars were equipped with automatic couplers is not very significant. Had they been furnished with the old style link-and-pin coupler, there would have been no occasion for a person making the coupling to place himself between the drawbars. By standing on one side or the other thereof the coupling could be made with practically no risk to any portion of the body but the hand. In the instant case the hip and body of deceased were crushed between the draw-bars, showing that he was in a position not required by any mode of coupling. Therefore, so far as known, he needlessly placed himself in a dangerous position. Under what assumption of safety he did so will never be definitely known. That he believed himself safe must be taken for granted. That such belief was founded upon the assumption that his signal to stop was obeyed is at least probable. True, as defendant argues, a glance to the rear would have disclosed the fact that it was not obeyed, but such glance was evidently not given. The situation is one from which a number of quite reasonable and varying conclusions can be legitimately drawn, and hence tbe finding tbat Geiger’s negligence was tbe greater cannot be disturbed.

This brings us to a consideration of whether or not it was error to refuse to submit tbe question proposed by tbe defendant requiring tbe jury to find whose negligence, tbat of Geiger or tbat of tbe deceased, contributed in a greater degree to produce tbe injury. Sec. 1816, Stats. (Laws of 1907, cb. 254), provides:

“Every railroad company shall be liable for damages for all injuries whether resulting in death or not, sustained by any of its employees, subject to tbe provisions hereinafter contained regarding contributory negligence on tbe part of tbe injured employee:

“1. When such injury is caused by a defect in any locomotive, engine, car, rail, track, roadbed, machinery or appliance used by its employees in and about tbe business of their employment.

“2. "When such injury shall have been sustained by any officer, agent, servant or employee of such company, while engaged in tbe line of bis duty as such and which such injury shall have been caused in whole or in greater part by the negligence of any other officer, agent, servant or employee of such company, in the discharge of, or by reason of failure to discharge his duties as such.

“3. In every action to recover for such injury the court shall submit to the jury the following questions: Eirst, whether the company, or any officer, agent, servant or employee other than the person injured was guilty of negligence directly contributing to the injury; second, if that question is answered in the affirmative, whether the person injured was guilty of any negligence which directly contributed to the injury; third, if that question is answered in the affirmative, whether the negligence of the party so injured was slighter or greater as a contributing cause to the injury than that of the company, or any officer, agent, servant or employee other than the person so injured; and such other questions as may be necessary.

“4. In all cases where the jury shall find that the negligence of the company, or any officer, agent or employee of such company, was greater than the negligence of the employee so injured, and contributing in a greater degree to such injury, then the plaintiff shall be entitled to recover, and .the negligence, if any, of the employee so injured shall be no bar to such recovery.”

It will be observed that the substantive part of the act gives a cause of action against a railway company notwithstanding contributory negligence on the part of the plaintiff, provided the injury shall have been caused in greater part by. the negligence of the defendant. The administrative parts of the statute also recognize that the crucial test of liability is whose negligence contributed in a greater degree to produce the injury by providing for such a 'finding in both subd. 3 and 4. This court has consistently recognized such a construction of the statute. In the case of Jensen v. Wis. Cent. R. Co. 145 Wis. 326, 128 N. W. 982, there may be language susceptible of a different construction. But it was used in the discussion of the subject as to whose fault was in greater proximate relation to the injury, and it must be' deemed limited to that. The language therein used referred to the seventh question, which read: “If you answer the last question by ‘Yes,’ was said negligence of said plaintiff slighter or greater as a contributing' cause to his said injury than that of the defendant company’s negligence ?” thus clearly indicating that the subj ect of greater or slighter contributing cause was dealt with and not the subject of greater or slighter negligence. And it was suggested that the statutory question could be simplified by eliminating the alternative form thereof so it could be answered responsively by Yes or No. In the case at bar we have findings that the defendant and the deceased were each guilty of negligence; that the negligence of each contributed to the injury; and that the negligence of the defendant was greater than the negligence of the deceased. But the basic question, upon which the statutory liability depends, namely, whose negligence contributed in a greater degree to produce the injury, was not submitted.' Conceding that the administrative parts of the statute are directory merely, still the fact remains that there is no finding showing that plaintiff is within the substantive part of the statute giving the cause of action, to wit, a finding that the injury was caused in greater part by the defendant’s negligence. In the case of Schendel v. C. & N. W. R. Co. 147 Wis. 441, 133 N. W. 830, it was held that the right to have the questions as to whose negligence was the greater and whose negligence contributed in a greater degree to produce the injury submitted to the jury was a substantial right when they could not be answered as a matter of law by the court. Such right is not only provided for in the statute authorizing the recovery, and without which none could be had, but it has a substantial basis for its existence in the law of negligence itself. It was therefore prejudicial error to refuse to submit the question requested, unless it can be answered as a matter of law by the court. The observations made respecting the finding that Geiger’s negligence was greater than that of the deceased apply equally here. Many legitimate and probable inferences’ from the situation may be drawn bearing more or less upon the preponderance of. the one or the other negligence as a contributing cause. It therefore lies within the field of jury questions, and should be submitted to a jury to answer.

Counsel for plaintiff argues that since the jury found the deceased and the defendant were each guilty of negligence; that the negligence of each contributed to produce the injury; and that the negligence of the defendant was greater than that of the deceased, that the verdict was therefore equivalent to a •fincling that defendant’s negligence contributed in a greater degree to produce the injury than did the negligence of the deceased. He says the negligence of both was found to have contributed to the injury, and the negligence of the defendant was found to be greater, therefore it was found to be a greater contributing cause. This would be true only in the event that it can always be said that the greater negligence contributes in a greater degree to an injury — a proposition not sound in fact. To say that the jury, by finding that defendant’s negligence contributed to the injury and was greater than that of the deceased, has found that the injury was caused in greater part by the defendant’s negligence, is to deprive the defendant of the right to submit to the jury the most vital question upon which its liability depends. The statute plainly contemplates that in every case where different inferences may legitimately be drawn as to whose negligence contributed in greater part to the injury, such question shall in explicit language be submitted to and passed upon by the jury. The statute is clear and definite in its requirements upon that point and a cause of action founded thereon must comply with its terms.

Contention is made that inasmuch as the deceased lived an appreciable length of time after the injury, a cause of action vested in him that survived; that plaintiff has two causes of action, one based upon the right of action that vested in the deceased, and one for the pecuniary loss sustained by the widow; that the cause of action vesting in the deceased survives in its entirety, and under it damages, covering earnings which it is reasonably certain the deceased would have received had he lived, could be recovered; and that it was therefore error to instruct the jury in this action, which is one for the pecuniary loss the widow has sustained, that they should take into consideration the probable future earnings of the deceased had he lived and the probability of her sharing as heir in the additions to his property from future earnings. In Johnson v. Eau Claire, ante, p. 194, 135 N. W. 481, it was held that damages for the cause of action that vests in the deceased are limited to damages which he sustains in his lifetime, while damages accruing to the widow or other relative by reason of the death of the deceased are limited to pecuniary loss resulting by reason of such death, and hence accruing subsequent thereto. Such rule of damages permits of no duplication. The estate recovers on a cause of action vesting in the deceased the damages lie sustained in his lifetime, and the widow or next of kin the pecuniary damages accruing to her or them by reason of his death and subsequent thereto. Hence the court properly told the jury to consider the future probable earnings of the deceased had he lived which they were reasonably certain she would have received from him, and the additions that the earnings of the deceased would probably have made to his property had he continued to live, and the reasonable expectation which the widow had of pecuniary advantage by ultimately receiving a share of such earnings as one of his heirs. Nemecek v. Filer & S. Co. 126 Wis. 71, 105 N. W. 225; Johnson v. Eau Claire, ante, p. 194, 135 N. W. 481.

Eor the error of refusing to submit to the jury the question requested by defendant, as to whose negligence contributed in a greater degree to produce the injury, the judgment must be reversed.

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

The following opinion was filed May 21, 1912: