Annes v. Milwaukee & N. R. Co.

• Decision Date: 03 November 1886
• Citation: 30 N.W. 282,67 Wis. 46
• Parties: ANNES, ADM'X, ETC., v. MILWAUKEE & N. R. CO.
• Court: Wisconsin Supreme Court

67 Wis. 46

30 N.W. 282

ANNES, ADM'X, ETC.,

v.MILWAUKEE & N. R. CO.

Supreme Court of Wisconsin.

November 3, 1886.

Appeal from circuit court, Brown county.

Hudd & Wigman, for respondent, Annes, Adm'x, etc.

George H. Noyes, for appellant, Milwaukee & N. R. Co.

TAYLOR, J.

This action was brought by the respondent to recover damages for the death of her husband, which she alleges was caused by the negligence of the appellant, its servants, agents, or employes; he being, at the time he received the injuries which caused his death, a passenger on one of the appellant's trains, and being transported, as such passenger, from De Pere to the city of Green Bay, this state. The material facts in the case are the following:

First. The deceased, at the time he received his injuries, was riding in the caboose attached to a freight train, and was being carried from De Pere to Green Bay.

Second. He was traveling upon a free pass, and had paid no consideration for such transportation by the company. On the back of the pass, signed by the deceased, was the following agreement, plainly printed thereon:

“The person accepting this pass assumes all risk of accident, and expressly agrees that the company shall not be liable, under any circumstances, whether of negligence of their agents or otherwise, for any injury to the person, or any loss or damage to the property, of the passenger using this pass. This pass will be forfeited if presented by any other than the person named thereon. I accept all the above conditions.

+-----------------------+
                ¦[Signed]¦J. A. ANNES.” ¦
                +-----------------------+
                

Third. That after the train had left De Pere, and proceeded on its way towards Green Bay about a mile and a half, it was stalled in the snow, and could proceed no further. Thereupon a brakeman was sent back towards De Pere to procure aid to relieve the train. This brakeman met an engine, with a snow-plow attached, on the road between the stalled train and De Pere, or at De Pere. He communicated the fact that the train was stalled in the snow, and undertook to inform the conductor and engineer where the stalled train was located. He then got on the engine with the snow-plow attached. That engine then ran north towards the stalled train, and, without stopping, ran into the rear end of the caboose attached to the stalled train, breaking the rear end of the caboose, and injuring the deceased so that he died a short time thereafter.

Fourth. That it was snowing at the time the accident took place, and the wind was blowing so as to render it difficult, if not impossible, for those on the engine behind the snow-plow to see the stalled train, towards which they were approaching, when such engine was in motion; that there was no flagman placed on the track behind the stalled train to give warning to the approaching engine and snow-plow, nor was there any bell rung or whistle sounded on the stalled train. The brakeman who went back for the snowplow says he placed three torpedoes on the track behind the stalled train, but the evidence shows that these were entirely inadequate to give warning to the approaching engine, and were probably swept off by the snow-plow and not exploded, or, if exploded, the wind and drifting snow prevented those on the engine behind the snow-plow from hearing the explosion.

Upon the trial a special verdict was rendered by the jury as follows:

“ Question 1. Was the defendant, or its employes, guilty of any carelessness which caused the death of the plaintiff's intestate, James A. Annes? Answer. Yes. Q. 2. If to the foregoing question an affirmative answer be given, then who was the negligent employe? A. Engineer, brakeman, and conductor. Q. 3. If to the first question an affirmative answer be given, then state in what did the negligence consist. A. The brakeman is guilty in not locating the exact location of the stalled train. The engineer and conductor did not use necessary precaution to prevent the collision. Q. 4. If your answer to the first question be ‘Yes,’ was the carelessness ordinary or gross? A. Gross. Q. 6. What was the rate of speed--how many miles per hour--at which such engine was running at the time it struck such caboose? A. Ten miles. Q. 7. Could the engineer of the engine to which the snowplow was attached have seen the caboose in which the said James A. Annes was seated, in time to have stopped his engine before it struck such caboose? A. Yes. Q. 8. Was the deceased, James A. Annes, guilty of any want of ordinarycare, however slight, contributing to the injury? A. No. Q. 9. What is the pecuniary loss to the widow of said deceased, James A. Annes, as a direct consequence of his death? A. $3,500, (three thousand five hundred dollars.)

CLARK AMES, Foreman.”

Exceptions were taken to the several findings of the jury as being unsupported by the evidence, and a motion was made to set aside the verdict, and for a new trial, for the reason that the verdict was wholly unsupported by the evidence, and for errors committed and exceptions taken on the trial.

After hearing this motion, the learned circuit judge set aside the fourth and seventh findings of the special verdict as unsupported by the evidence. The learned circuit judge was of the opinion that there was not sufficient evidence to sustain the seventh finding, viz.: “That the engineer of the engine to which the snow-plow was attached could have seen the caboose in which the said James A. Annes was seated in time to have stopped his engine before it struck the caboose;” and he set aside the fourth finding, that those in charge of the snow-plow and engine were guilty of gross negligence or carelessness in running into the caboose. The learned circuit judge stated that he set aside the fourth finding because he inferred that the jury based that finding on the finding that the engineer on the engine attached to the snowplow could have seen the caboose in time to have stopped his engine before it struck the caboose; and, as he was of the opinion that there was no evidence to sustain the seventh finding, and as the fourth was based solely on that, it was also unsupported. After setting aside these findings, the learned circuit judge, instead of granting a new trial, ordered judgment to be entered, upon the verdict so corrected, for the plaintiff, on the condition that the plaintiff should remit $1,000 from the damages found; this learned circuit judge being of the opinion that the damages were excessive; and thereupon the plaintiff remitted the $1,000, and entered judgment against the defendant for the sum of $2,500 and costs, and from that judgment the defendant appeals to this court.

From the course pursued by the learned circuit judge it is evident that he did not consider the fourth finding of the special verdict material in sustaining the plaintiff's action. Had he considered it material, he would necessarily have ordered a new trial, instead of entering a judgment in her favor after setting aside the finding so unsupported by the evidence. We will therefore first consider whether it was necessary for the plaintiff, in order to recover in this action, to show that the injury which caused the death of her husband was the result of gross negligence on the part of the defendant, its employes, agents, or servants, or whether she may recover by showing that such injury occurred by a mere want of ordinary care on the part of the defendant, its employes, agents, or servants.

This raises the question whether a railroad company may, in cases where it agrees to transfer passengers without compensation, lawfully contract with such persons so as to relieve itself from all liability for any and all injuries which may be inflicted upon them by reason of any carelessness or negligence of its employes, agents, and servants, whatever may be the degree of such carelessness or negligence, or whether it may contract so as to relieve itself from liability for injuries arising from the mere want of ordinary care on the part of its agents, servants, and employes, and not for injuries resulting from such gross acts of negligence on the part of its agents, servants, and employes as are equivalent to acts of willfulness or criminal neglect on their part. It would seem that the learned circuit judge must have held in this case that the company could not lawfully contract to relieve itself from any want of ordinary care on the part of its agents, servants, or employes, and that the plaintiff was entitled to recover upon the same evidence that would have entitled her to recover had the deceased not signed the contract above set out. After a careful consideration of the decisions of this court, as well as of the large number of decisions of other courts upon these questions, we have come to the conclusion that the learned circuit judge erred in his decision in this case as to the binding effect of the contract signed by the deceased in this case.

By an examination of all the authorities cited by the learned counsel for the respective parties upon the argument of this case, as well as others not cited, we find that in England, Canada, New York, New Jersey, Connecticut, and West Virginia the courts of those countries and states have held that a railroad company may, upon a proper consideration, lawfully contract to relieve itself for any and all negligence on the part of its servants, employes, and agents, without any regard to the degree of such negligence, and that such contract is not against public policy. These courts have therefore held that where the company agrees to carry a person without any compensation, or in different manner, and upon cars in which they do not usually carry passengers, the company may lawfully contract for exemption from all liability on account of the carelessness of its agents, servants, and employes. See the following cases cited by the learned counsel for the appellant: McCawley v. Railroad Co., L. R. 8 Q. B. 57; Hall v. Railway Co., L. R....