Nelson v. Chi., M. & St. P. Ry. Co.

• Citation: 19 N.W. 52,60 Wis. 320
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 08 April 1884
• Parties: NELSON v. CHICAGO, M. & ST. P. RY. CO.

60 Wis. 320

19 N.W. 52

NELSON

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Filed April 8, 1884.

Appeal from circuit court, Racine county.

The plaintiff was for several years a locomotive engineer in the service of the defendant company. Having been discharged from such service he brought this action to recover an unpaid balance alleged to be due him for wages, and claimed $185.75, and interest from March 1, 1881. The answer of the company admits the service, but denies the indebtedness. It also contains a counter-claim for damages suffered by the company by the alleged negligence of the plaintiff to an amount exceeding the plaintiff's demand. The damages claimed were the result of a collision between the train on which the plaintiff was employed, known as train No. 7, and another train, designated as No. 38, which occurred under the following circumstances: Previously to Sunday, February 20, 1881, under the railway time-table then in force, train No. 38 left Savanna, on the Mississippi river, going east, at 11:55 P. M., except Sundays. Train No. 7 left Freeport, Illinois, going west, daily, in the evening. These trains ran upon the Racine & Southwestern division of the defendant's railway, and met at an intermediate station called Hickory Grove on each night except Sundays. No. 38 had the right of way, and hence No. 7 waited for it at Hickory Grove on the nights that No. 38 was on the road. On Sundays No. 7 ran through that station without stopping. On Sunday, February 20, 1881, a new time-table went into operation, under which train No. 38 left Savanna 10 minutes later, to-wit, at 12:05 A. M., and the running time of No. 7 was so adjusted that the two trains met as before at Hickory Grove. The time of meeting by the new time-table was 12:25 A. M. This time-table provided that (with two or three specified exceptions, not including No. 38) trains would not leave on Sunday. The result of this change of time was that No. 38 would not be on the road, as theretofore, on the night between Saturday and Sunday, but would be the following night. The plaintiff received the new time-table at 10 o'clock in the morning of Sunday, February 20th, and studied it with his conductor. He discovered that the time of the meeting of the two trains at Hickory Grove was a few minutes later than it had theretofore been, but he failed to discover that the change of time would bring No. 38 on the road that Sunday night. So he ran No. 7 through Hickory Grove without stopping, as was the custom theretofore, and a mile and a half west of that station his train collided with No. 38, and caused the damage complained of in the counter-claim. Both were freight trains.

The jury returned a special verdict in the form of answers to 21 questions submitted to them. The verdict finds the facts substantially as above stated, and further finds that the plaintiff examined the new time-card carefully for about two hours; that he exercised due care in such examination and in trying to learn and discharge, and in discharging, his duty. Judgment for the plaintiff was rendered on the special verdict for the sum which the jury found due him on account of his wages. The defendant moved the court to set aside the verdict and judgment and for a new trial, for the reasons, among others, that the special verdict is inconsistent; that it is contrary to the evidence; and that the answers to certain questions are evasive. These questions and answers will be found in the opinion. The motion was denied. The defendant appeals from the judgment.Fish & Dodge, for respondent, Samuel Nelson.

H. H. Field and Fuller & Fuller, for appellant, the Chicago, M. & St. P. Ry. Co.

LYON, J.

The gravamen of the defense is the alleged negligence of the plaintiff which caused the collision of the two trains. The question whether the failure of the plaintiff to discover that the new time-table put train No. 38 on the road on the night the collision happened was negligence, was submitted to the jury and resolved in the negative. It is now claimed, on behalf of the railroad company, that the plaintiff was bound to discover from the time-table that No. 38 would be on the road that night, and to wait for it at Hickory Grove, and hence that his failure to do so was negligence in law. If this is a correct position, the defendant's counter-claim was established, and the plaintiff was not entitled to judgment for the balance of his wages, because the damages to the defendant, caused by his negligence, greatly exceeded his demand.

A vital question in the case, therefore, -- one which underlies many, if not all, of the other propositions argued by the learned counsel for the defendant, -- is, whether, under the facts of the case, the question of the alleged negligence of the plaintiff was a question of fact for the jury or of law for the court.

In Hill v. Fond du Lac, 56 Wis. 242,S. C. 14 N. W. REP. 25, it is said, in the opinion of Mr. Justice CASSODAY: “Negligence is almost always to be deduced as an inference of fact from several facts and circumstances disclosed by the testimony, after their connection and relation to the matter in issue have been traced, and their weight and force considered. In such cases, if unbiased men would differ as to such inferences, then they cannot be made without the intervention of a jury, although all the witnesses agree in their statements, or there be but one statement which is consistent throughout.” Page 246.

It is only when the inference of negligence, or the absence of it, from the undisputed facts proved, is inevitable that the court will direct a verdict. In all cases in which such inference is in doubt, giving to the testimony the construction most favorable to the party charged therewith, the question of negligence is for the jury. A very large proportion of actions for negligence are of the latter class. Sutton v. Wauwatosa, 29 Wis. 21;Kenworthy v. Ironton, 41 Wis. 647;Townley v. Ry. Co. 53 Wis. 626;S. C. 11 N. W. REP. 55.

In this case the facts are undisputed, but several of them are essential to be considered, and the relative weight of each determined before the inference therefrom of negligence, or the want of it, can properly be drawn. We will briefly refer to them. The time-table which went into operation February20, 1881, was first placed in the hands of defendant at 10 o'clock A. M. of that day. It could be ascertained from such time-table that train No. 38 was not to start from Savanna until five minutes after midnight, but it required a mental process to determine that this slight change of 10 minutes would put that train on the road on Sunday night instead of Saturday night, as theretofore. The plaintiff and his conductor would naturally examine first to see if there was a change in the time of their train, or in the hour or place of meeting other trains. This they did, and fully learned the time-table in these respects. But they both failed to discover the fact that a change of 10 minutes in the running time of No. 38 worked a change of 24 hours once in each week. In this particular they failed...