Astin v. Chi., M. & St. P. R. Co.

Decision Date25 October 1910
Citation143 Wis. 477,128 N.W. 265
CourtWisconsin Supreme Court
PartiesASTIN v. CHICAGO, M. & ST. P. R. CO.
Syllabus by the Judge.

The basic feature of the law of actionable negligence is as declared during the first year of this court's history and since steadily and firmly adhered to.

The basic feature above referred to is this: There are three degrees of negligence, viz.: Slight-an absence of that degree of care and vigilance which persons of extraordinary prudence and foresight are accustomed to use; ordinary-failure to exercise in any given situation such care as the great mass of mankind ordinarily exercise under the same or similar circumstances; and gross-failure to exercise any care to avoid inflicting injury to the person or property of others; recklessly or wantonly acting or failing to act to avoid such injury, evincing such utter disregard of consequences as to suggest a willingness, substantially equivalent to intent, to injure, and denominated such, constructively, and classible with actual intent as regards duty to compensate for the injury.

The first degree is characterized by such slight inadvertence that in case of its being the fault of the injured, it does not militate against his recovering for his loss, and in case of its being the fault of the injurer the result is damnum absque injuria.

The second degree is characterized by inadvertence of the nature indicated in No. 2 and injuries proximately resulting to the person or property of another, and not proximately contributed to by that other's want of ordinary care, are actionable.

The third degree is not characterized by inadvertence, in the lexical sense, at all, but rather by absence of it; while in the first and second degrees it must be present and dominant.

There are no sub degrees within the first and second mentioned. Want of ordinary care within the field of inadvertence is of no greater dignity, if considerable than if little, so long as it is proximate, in a legal sense, to the injury.

The rule logically follows that an injury to a person, proximately caused by failure of another to exercise ordinary care for that person's safety, and proximately contributed to by such person's want of ordinary care, however slight-is not actionable, comparative effects of such want of care not being recognized in our system.

In case of the personal or property rights of a person being physically injured by gross negligence of another, that other is liable to such person for the pecuniary loss resulting naturally and ordinarily therefrom, regardless of any want of ordinary care on the part of such person contributing thereto.

A cause of action sounding in ordinary negligence, is one thing, and a cause of action sounding in gross negligence is another. Both cannot characterize a single circumstance of a person being injured by another.

Such two causes of action, in form as characterizing a single circumstance of a person being injured by another, satisfy subdivision 1 of section 2647, St. 1898, in that they arise out of the same transaction, and satisfy subdivision 3 of such section, in that they are both injuries to person or property.

The two causes of action are not inconsistent in the sense that the choice of one absolutely waives the other.

In circumstances rendering it difficult to determine which of such two causes of action is available, the doctrine of election does not apply, in this, the good-faith unsuccessful assertion of one does not necessarily prejudice asserting the other.

By necessary implication, causes satisfying the letter of subdivision 1 or subdivision 3, § 2647, St. 1898, must also have the element of consistency to the extent that the choice of one does not create a waiver of opportunity to turn to the other.

If a person grounds an action to recover for a personal injury on ordinary negligence alone, he cannot, without amending his pleading, recover on the ground of gross negligence.

If a person grounds an action to recover for a personal injury on gross negligence alone, he cannot, without amending his pleading, recover on the ground of ordinary negligence.

Gross negligence does not, to any extent, include ordinary negligence. So a charge in a complaint confusing the two, renders the pleading indefinite and uncertain and it should be construed, if practicable, as alleging either the one or the other and the trial restricted accordingly.

A verdict finding the defendant guilty of having failed to exercise ordinary care and of gross negligence, respecting a single circumstance of a personal injury to the plaintiff, is contradictory and will not support a judgment for the latter.

In general, the Code requires a plaintiff to take a stand on the cause of action he expects to recover, but permits departure therefrom so far as impracticable to comply therewith.

By the spirit of the Code, the plaintiff, supposing he has one or the other of two causes of action to remedy a single wrong, they not being inconsistent in the sense that the choice of one till shown to be efficient necessarily waives the other, may, acting in good faith, plead both in separate counts complying with section 2647, St. 1898, and recover on the one which the case made by the evidence entitles him to.

In case of a person who has been injured in his person or property by wrongful conduct of another, believing such other liable for the wrong, but is uncertain whether it was characterized by ordinary or by gross negligence-he may seek to recover compensation on both aspects, stating each in a separate cause of action and insisting upon both up to such time as there ceases to be reasonably conflicting inferences on the evidence as to which is the right one.

In case of a situation such as mentioned in the last foregoing, upon it appearing clearly what cause of action the plaintiff has, in fact, if any, the court should take the other from the jury or dismiss the action in respect thereto.

In case of there being the reasonably conflicting inferences mentioned in the last foregoing, on the whole evidence, the cause should be submitted to the jury with such definite instructions as to guard against a contradictory verdict being rendered.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Action by Whitney T. Astin, administrator of Benjamin C. Astin, against the Chicago, Milwaukee & St. Paul Railroad Company. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.

Action to recover compensation for damages alleged to have been caused to the surviving widow of plaintiff's intestate by the wrongful conduct of defendant's employés, causing his death.

The complaint states a cause of action based on the theory that ordinary negligence of defendant's servants was the proximate cause of the death of plaintiff's intestate, and a second cause of action grounded on the theory that gross negligence of such servants was such cause, in that they, in utter disregard of the personal safety of such intestate and conscious of his peril, caused a locomotive under their charge and control to collide with him at a public crossing of defendant's track, causing his death.

On motion in defendant's behalf plaintiff was ordered to elect between the two causes of action on which he would rely. Upon failure to comply therewith and on motion in defendant's behalf, the action was dismissed and judgment rendered accordingly. Plaintiff appealed therefrom.

E. H. Ryan, for appellant. C. H. Van Alstine, C. E. Vroman, and Thos. S. Nolan, for respondent.

MARSHALL, J. (after stating the facts as above).

If a person, owing a duty to another respecting that other's personal safety, violates it, inflicting upon such other corporeal injury, under such circumstances that it is difficult for him, by the aid of professional advice to satisfactorily determine whether the violation was characterized by what is known as gross negligence, or by the milder type of wrong denominated ordinary negligence-may such person have the wrong, whatever be its nature, redressed in a single action to recover for his injury, pleading in one cause of action liability on the ground of gross negligence and in a second on the ground of ordinary negligence? That is the broad question raised by the appeal.

Solution of the stated question involves the letter of the written law and its spirit as well, and also our judicial Code on the subject of actionable negligence. That a person, who has suffered a personal injury by actionable fault, may be so circumstanced as not to be able to truthfully assert with certainty whether the act be of the higher or the lesser degree of actionable negligence, as the full scope of the term is understood here and in many other jurisdictions-is most natural. That he should not be obliged, regardless of circumstances-to seek redress on one theory alone, his recoverable compensatory damages, whether claimed upon one theory or the other, being the same and dependable upon the same act, and if he fails, even upon the ground that proof of a degree of actionable wrong not alleged negatives the one alleged, the evidence of every physical fact being practically the same in one case as in the other, leaving the particular degree only a matter of inference of fact, he must go out of court, commence over again and submit the same evidence to another jury-would seem to be the case; testing the matter from the standpoint of reason and common sense.

Our Code of written law respecting the joinder in one suit of two or more causes of action possessed by one person against another, connected with a single subject of action, is very broad. Yet it has its limitations, pretty well defined in the letter of the statute and further defined by more than half a century of administration of it.

The limitations of the written law are not so free from ambiguity but that the court, progressively, has broadened the liberal meaning rather than adhered strictly thereto, much less restricted...

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