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

123 N.W. 904, 141 Wis. 423, 1910 Wisc. LEXIS 9

• Court: Wisconsin Supreme Court
• Decided: February 1, 1910
• Status: Published

Opinions

Tbe following opinion was filed December 7, 1909 :

Siebecker, J.

The right of the plaintiff to recover in this •action is governed by the provisions of sec. 1816, Stats, (ch. 254, Laws of 1907), which provides that:

“Every railroad company shall be liable for damages for all • injuries . . . sustained by any of its employees, . . . when such injury . . . shall have been sustained by any . . . employee of such company, while engaged in the line of his 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.”

It is also provided that the court shall submit to the jury the questions whether any negligence attributable to the company “directly contributed to the injury,” and, if such negligence is found, “whether the person injured Was guilty of any negligence which directly contributed to the injury,” and, if the jury shall find the injured person guilty of contributory negligence, the court shall then submit to them the inquiry “whether the negligence of the party so injured was slighter or greater as a contributing cause to the injury than that of the company.” It is further provided:

“In all cases where the jury shall find that the negligence of tire company . . . was greater than the negligence of the ■employee so injured, and contifibuting in a greater degree to such injury, then the plaintiff shall be entitled to recover.

The trial court directed a verdict for the defendant upon the ground that the evidence in this case showed as matter of law that the company’s negligence, which concurred with that of the plaintiff to produce his injuries, was not greater and contributed in no greater degree to such injuries than the plaintiff’s contributory negligence.

In Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 119 N. W. , 120 N. W. 150, we had occasion to declare that these provisions of the law did not affect the judicial power of the-court to determine whether the evidence presented tended to> show negligence attributable to the company and contributory negligence of the person injured, and, if the evidence tended’ to show such negligence, it was. foi? the jury to determine therefrom whether or not in fact such negligence or contributory negligence existed. It was also decided that the provisions declaring that the contributory negligence of the person should be no bar to his recovery in cases wherein the jury should find that the negligence attributable to the company “was greater than the negligence of the employee so injured, and contributing in a greater degree to such injury,” were within the legislative power of police regulation.

Upon this and other appeals, in actions under this statute, additional considerations have arisen respecting the interpretation of the context of the act and its effect' in the modification of the law as it theretofore existed. Subd. 3 of the act requires that there shall be submitted to the jury the question whether the company’s negligence and the injured person’s contributory negligence directly contributed to the injury. The inquiry is suggested: Does the use of the word “directly” operate to modify the law of proximate cause in the law of negligence ? We discover nothing in the phraseology of the act indicative of a legislative intent-to- modify the law on this subject. Nor does the language employed necessarily operate to effect a change as to what shall constitute proximate cause. The provisions are that the jury shall determine whether the company and .the injured person are guilty of negligence “directly contributing to- the injury.” The word “directly” was evidently employed here in the sense of proximately, and-was intended to include and comprehend the negligence which naturally and probably caused the injury; that is, the negligence which proximately contributed to produce the injury. True, it has. been said, in cases reviewing instructions to juries in negligence cases where the jury were informed that tbe proximate cause of an injury was such negligence as directly caused it, that such instructions were incorrect and failed to properly inform the jury that the right to recover rested on the fact that the damages claimed were the natural and probable result of the negligence charged. The ■criticism in these cases of the use of the word, as there applied, was that it did not convey to the jury the idea that the alleged injury must be shown to have naturally resulted from the negligence charged and that it was within reasonable anticipation that such negligence might cause an injury. As used in this statute it is applied to negligence in the accepted legal sense of responsible and efficient causation. This seems to us the reasonable and natural inference from the phraseology of the statute. We think it was so intended by the legislature, and that the words of the statute, “negligence directly contributing ■to the injury,” were employed as expressive of the idea of negligence proximately contributing to the injury, and in the trial of cases wherein it is appropriate to inform juries of the provisions of the law it is to be interpreted that the clauses referring to “negligence directly contributing to the injury” are applied to the negligence proximately contributing to the injury.

The statute also provides that if the jury shall find that the negligence attributable to the company “was greater than the negligence of the employee so injured, and contributing in a ■greater degree to such injury,” then plaintiff’s contributory negligence shall be no bar to< his recovery. This abrogates the pre-existing law that the contributory negligence of the injured person may defeat recovery. This provision is a complement to the preceding subd. 2, which makes railroad companies liable for injuries to employees which have resulted “in whole or in greater part” from the negligence attributable to them. It is to be noted that the questions prescribed by subd. 3 are made to harmonize with subd. 2, in that the negligence -of tbe company and tbe contributory-negligence of tbe person Injured are treated, in effect, as contributing causes to tbe injury. While tbe same phraseology is not employed in subd. 4 in dealing with this subject, it is evident that tbe legislature intended this provision to carry into effect tbe liability created by subd. 2 and to so modify the contributory rule as to accord therewith and to enforce recovery in.those cases wherein tbe negligence of tbe injured person should be found to be slighter as a contributing cause to the injury than that of the company.

Interpreting these provisions together, we are persuaded that the legislative intent was to apply this legislation to the ■law as'established by the decisions of this court. It had been ■recognized by this court that the negligent acts of two or more responsible agencies might proximately contribute to produce an injury and that their negligences might concur in different degrees in proximately causing it. Xn Ounningham, v. Lyness, 22 Wis. 245, the court, referring to the concurrence of an injured person’s negligence with that.of another as a bar to recovery, states: “A party cannot recover for an injury of which ‘his own negligence was in whole or in part the proximate cause.” In an exhaustive review of the decisions of this court-on the subject of negligence and contributory negligence in Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 84 N. W. 446, the subject was adverted to. The result is embodied in the headnote and is stated thus: ~

“In an action to recover damages claimed to have been ■caused by actionable negligence of the defendant, contributory negligence of the plaintiff, however slight, precludes his recovering damages, notwithstanding negligence of the defendant, however great, contributed thereto.”

This idea that the concurrence of the negligences of both parties to a legal controversy might constitute the proximate cause is also recognized and exemplified in numerous crossing ■cases that have come before this court.

The context of the statute indie,ates that the legislature as-snmed this to be within the legal conception of proximate' cause in the law of negligence, and proceeding thereon framed this statute to modify the right of recovery in negligence cases^ against railroad companies by providing that if the company’s-negligence contributed to cause the injury in greater degree' than that of the injured person, then the company should be-liable for the resultant damages as if its negligence had been the sole cause of the injury; or, in the language of subd. 4, if “the negligence of the 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.” In administering the statute in cases as they actually arise, it devolves on the court to determine whether there is any evidence tending to show negligence attributable to the company and contributory negligence of the-injured person which proximately contributed to the injury complained of. If the evidence produced shows that the neg-ligences of both parties to the action concurred to produce the injury, unless the evidence is so clear and undisputed as to' permit of only one inference on the question, it then becomes a question for the jury to determine whether the negligence of the injured party was slighter or greater as a contributing' cause to the injury than that attributable to the company. In case the evidence permits of only the one inference it devolves on the court to decide the issue as a matter of law. Whether a case is one for a court or jury to determine cannot be settled by any general rule or classification of cases, but must be determined in the light of the facts and circumstances of each particular case. The question is not ascertainable by any rule of absolute measurement, and it therefore must be submitted to human judgment.

It has been claimed and the suggestion is made in argument on this feature of the law that it is practically impossible for a jury to determine such controversies upon a scale of infinite degrees, and that the legislature therefore must have intended tbat the laiv should be applied in view of the generally accepted classification of the degrees of negligence into slight, ordinary, and gross, and that such- degrees of negligence should be observed in comparing as;'contributing causes the negligence of the company and that of the injured person. We discover no such intent or provision in the law, nor do we deem it impracticable to have the jury judge whether the negligence of the injured person contributing to cause the injury is- slighter or greater than that attributable to the company. Applying the statute to the case before us, we cannot accede to the defendant’s claim that it would be mere speculation and guesswork for the jury to attempt to determine whether plaintiffs contributory negligence was slighter or greater as a contributing cause than that of the defendant.

It is alleged -that the plaintiff was guilty of negligence in omitting to perform his duty as brakeman on the occasion in question, in that he failed to protect the rear of the freight train from the passenger train, and that this failure of duty by him was a proximate cause of the collision and his injuries. The contention is that but "for plaintiff’s contributory negligence the injury would not have been received, and hence that the negligence of the plaintiff in its most favorable aspect under the law is equal to the negligence attributable to the defendant as a contributing cause to the injury. In the solution of this question all of the inferences from the evidential facts most favorable in support of the plaintiff’s alleged cause nf action must be assumed to be the view of the case which may be taken by the jury. The contention that plaintiff’s duty did not require him to flag the train under rule 62 unless directed so to do by the train conductor or by a signal from the engineer by a blast from the whistle cannot be sustained. The rule is clear in its provision that when a train stops between stations a flagman must go back to stop any train that may be following, give the prescribed signals, to it, and remain at the place to which he has gone until the train stops or he is recalled. This duty is further enjoined by rule 50, which informs persons engaged in the train service that:

“Train and engine men will be held equally responsible for a violation of any of the rules governing the safety of trains, and they must take every precaution for the protection of trains even if not provided for by the rules.”

We find no support for plaintiff’s claim that the duty imposed by these regulations was disregarded in practice to such an extent as to abrogate them. Nor is it shown that the plaintiff was informed while in defendant’s service that these rules and the duties imposed thereby were not obligatory on him. We think that the plaintiff as rear brakeman of this train was required to perform whatever duty these rules imposed on him.

The evidence tends to show that the plaintiff was the rear brakeman on a freight train which came to a stop on the main track between stations. He had not been informed by the engineer’s signal that the train was to make a stop. So far as he then knew, the train might be stopped only momentarily. In the operation of trains stops of a momentary character must inevitably occur, and on such occasions it would be both unnecessary and impracticable for the rear brakeman to leave the train at once to signal a train that might be following. It is obvious that if the brakeman should immediately so leave his train on all such occasions, he would on many occasions be wholly separated from his train. He testifies that he went forward to a point where he observed that the engine had been detached from the train and had departed for Hilbert Junction ; that then he crossed over to the other side of the train; that he observed the odor of a hot box, and that he attempted to locate it while he was returning to the caboose; that he took no more time than it naturally takes to make such a trip; that he returned to the caboose without intending to go and signal the coming passenger train; that he at once looked for the dope bucket in the caboose to fix the hot box; and that the collision occurred immediately, it is argued that this amounts to a violation of his duty under the rules and establishes his contributory negligence. Upon learning that the engine had departed for Hilbert Junction it became the duty of the plaintiff to procure the means and to go back to signal a coming train, and in omitting so to do he was guilty of not exercising that care which the situation, and the exigencies of the case demanded, but it is not so clear that it can be held as matter of law in what degree it contributed to produce the injury. The contention that it amounted to the very highest degree of negligence because the accident would not have happened but for the violation of defendant’s rules seems necessarily to assume that the plaintiff, in making this trip to ascertain whether the train was to stop more than momentarily, and in not instantly, upon the stopping of- the freight train, taking steps to signal the coming passenger train, was guilty of suqh a high degree of negligence as to preclude his recovery. He testifies that he consumed from fifteen to twenty-five minutes on his trip; that he relied on the' red-light signals displayed on the rear of the caboose to signal the coming passenger train; that he went to the caboose for the dope bucket to fix the hot box, and. while in this act the collision occurred. It is not clear from the record that if on his return to the caboose he had immediately proceeded to procure his lantern and torpedoes to signal the coming train he would have prevented the collision. The degree of negligence involved in these acts is not so clear that it can be determined as a matter of law. Under the circumstances it is a mixed question of law and fact Which must-be resolved by the jury.

The case also demands of the jury that they determine in what degree the negligence attributable to the company contributed to produce the injury. Among the matters bearing on this question it is alleged that the train dispatcher was derelict in his duty in permitting the passenger train to enter the block as be did; that the engineer of tbe passenger train omitted to obey special and express orders in running his train on tbe block; and that the conductor and tbe engineer of tbe freight train were negligent in not signaling or warning this brakeman of the stop, and in failing to ascertain before stopping that the plaintiff as rear brakeman was on duty or capable of protecting the rear of the train. In passing on the question of whether or not the company’s negligence caused plaintiff's injuries in greater degree than that of the plaintiff, all of these facts relating to the omission of duty on the part of these servants who occupied positions of great responsibility in the conduct of the defendant’s business must be viewed in comparison with the acts of the plaintiff in the light of their respective duties and their responsibility to exercise a degree of care commensurate to the exigencies of the situation. The case is not so plain and clear that but one inference can reasonably be drawn from the evidence as to these questions, and they therefore should have been submitted to the jury for determination.

The plaintiff’s contention that the defendant is estopped from charging plaintiff with contributory negligence because he was sent out on this trip in such a state of physical and mental exhaustion from being in constant service for the defendant immediately preceding it as to malee him incapable of comprehending and performing the duties required of him is not sustained. The evidence is undisputed to the effect, and plaintiff claims, that he attended to and comprehended all his duties. His whole claim and the showing refute the inference that he was unable to attend to Ms duties.

It is averred by the defendant that since the plaintiff has the burden of proving that the negligence attributable to the defendant was a greater contributing cause to the injury than that of the plaintiff, this involves a modification of the rule which has heretofore obtained in this state which casts the burden of proving plaintiff’s contributory negligence on the defendant. This rule operated to relieve the plaintiff from the necessity of showing himself free from contributory negligence. We discover nothing in the law evincing an intention of the legislature to change the rule, nor do we find that such a change is necessary for the orderly administration of the various provisions of the law.

Erom the views indicated, it results that the court erred in directing a verdict. The case should have been submitted to the jury for determination of the issues under the law as amended by eh. 254, Laws of 1907.

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