Crouse v. Chi. & N. W. Ry. Co.

• Decision Date: 21 February 1899
• Citation: 78 N.W. 446,102 Wis. 196
• Court: Wisconsin Supreme Court
• Parties: CROUSE v. CHICAGO & N. W. RY. CO.

102 Wis. 196

78 N.W. 446

CROUSE

v.CHICAGO & N. W. RY. CO.¹

Supreme Court of Wisconsin.

Feb. 21, 1899.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by George F. Crouse against the Chicago & Northwestern Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

This is an action for personal injuries. On and prior to July 26, 1896, the plaintiff was a locomotive engineer in the employ of the defendant, running between Oshkosh and Janesville. On the night of July 26th, at about 10:50 o'clock, the plaintiff was running the engine, attached to a freight train, southward over the defendant's railroad, and ran into a washout about a mile and a half north of the city of Janesville, and was seriously injured. The washout had occurred during a heavy rainstorm on the evening in question, and it was located at a place where there had been for many years a small, wooden culvert. The complaint charges the defendant with negligence in originally building the culvert too small, and by allowing it to become out of repair and unsafe, and by digging away the supporting earth and gravel on one side of the culvert, thus rendering the roadbed weak, and by failure to patrol the track, and warn the plaintiff of the washout. The evidence showed that the plaintiff left Oshkosh, with his freight train, at a little after 4 o'clock in the afternoon, and that about 8 o'clock in the evening, when between Juneau and Clyman, it rained; that at Koshkonong he was flagged, and stopped his train, and the section foreman of that section told him that his section was all right, and to go ahead. The rain continued, and near Milton Junction he could see that it had been raining hard. He stopped at Milton Junction long enough to get a clearance slip for Janesville, which is eight miles distant, and left Milton Junction at about 11:15 p. m. It was dark and rainy, with occasional flashes of lightning. He testifies that his train, at the time of the accident, was going 10 or 12 miles an hour, and there is testimony on the part of some of the other train employés that it was going from 15 to 18 miles an hour. After going under the bridge called “Black Bridge,” by a flash of lightning he suddenly saw in the track a black place 50 or 60 feet in front of him, looking like a bridge. He knew there was no bridge there, and that it must be a washout. He had 26 cars in his train, and testifies that it was impossible to stop before reaching the washout, so he opened the throttle, and made a run for it. The engine went over the washout, being pressed forward by the weight and momentum of the train behind, and stopped suddenly off the rails. The plaintiff was thrown against the fire box, and seriously injured. A special verdict was demanded and rendered as follows, and, in connection therewith, a general verdict was rendered for the plaintiff: “(1) Was the culvert in question so constructed and maintained as to conduct through it the water which it was intended to conduct through, not only in ordinary showers, but in severe showers, that would naturally occur during a series of years, and which could reasonably be anticipated? Ans. It was not. (2) Was the culvert in question negligently and carelessly constructed and maintained by the defendant company, or its agents or employés, so as to render it inadequate for the purpose for which it was constructed? Ans. It was. (3) Was the said culvert carefully and thoroughly inspected from time to time by the employés of the company whose duty it was to give such inspection? Ans. It was not. (4) Did the nearness of the gravel pit to the culvert, in the month of July, 1896, render said culvert unsafe, in view of the water that might be conducted through it? Ans. Yes, it did. (5) Was the rainstorm on the night of July 26, 1896, extraordinary, unusual, and unexpected in its character, or unprecedented, and one which had only occurred at such long and irregular intervals that it would not be anticipated by men of ordinary prudence in their business calculations? Ans. It was not. (6) Might the washout in the track have been discovered by the defendant railway company by reasonable and proper inspection, and in time to have prevented the accident? Ans. Yes, it might. (7) Was the storm which occurred on the night of July 26, 1896, one likely to cause damage to the defendant's roadbed and track, where the culvert in question was situated? Ans. It was. (8) Was the defendant's servant Stageman guilty of any negligence in not properly and carefully inspecting the road near where the culvert was, on the night in question? Ans. He was. (9) Was the plaintiff in the exercise of ordinary care at and prior to the time of his injury? Ans. He was. (10) Was the plaintiff injured, on the night in question, in consequence of the washout, without contributory negligence on his part? Ans. He was. (11) What damages has the plaintiff sustained in consequence of the injury received on the night in question? Ans. $20,000.” Judgment was entered on the verdict for the plaintiff, and the defendant appeals.

Fish & Cary, for appellant.

Fethers, Jeffris, Fifield & Monat, for respondent.

WINSLOW, J. (after stating the facts).

1. It was very strenuously insisted by the defendant's counsel on the argument of the case that the evidence showed that the plaintiff was guilty of contributory negligence as a matter of law. In this connection the following rules of the railroad company, with which the plaintiff was familiar, were put in evidence: “Rule 128. Freight and special trains must not pass over any switch at a speed exceeding ten miles an hour.” “Rule 410. The protection of the trains of the company from accident during storms, and from danger of the track and bridges being washed out by sudden and heavy rains and rise in streams, especially if they occur in the night, is of the greatest importance, and all employés in the operating department are directed to familiarize themselves with the following instructions, and carry them out strictly.” “Rule 414. Conductors and engineers on the road, when overtaken between stations by such storms or indications of high water which will cause damage, will proceed with great caution, keeping their trains under complete control, and at such speed that they can be stopped, after coming in sight of any obstruction or damage to track, in time to prevent accident. They will stop to examine bridges and culverts or other places liable to be damaged by high water, and, if they find any indication of danger from proceeding with their trains, will, on the arrival at the first telegraph station, call up the agent or operator, and report to the office of their respective division superintendents for instructions, and will not proceed until such instructions are received.” The evidence showed that the plaintiff was an experienced engineer, 42 years of age, and had run trains over this section of road for upwards of 16 years. It is claimed that the plaintiff, by his own statement, shows that he was operating his train at a negligently high rate of speed as he approached this culvert, and that he violated rules 128 and 414, above quoted, and that by reason of such violation of rules the accident happened. We are not able to agree with the contention that contributory negligence was proven as matter of law. While it appears that there were very heavy rainstorms at or near Janesville during the afternoon and evening in question, it does not appear conclusively that the plaintiff knew that these storms were so severe or unusual in their nature as to call for the exercise of the precautions demanded by rule 414, above quoted. The plaintiff testified that an ordinary rain commenced to fall when his train was two miles south of Juneau, and that it rained while they were running about seven miles, and then stopped; that at Milton Junction he could see that it had been raining a little harder, and there was water standing in the fields; that it was then raining, but not heavily, and continued to rain until they reached the washout. There is nothing inherently improbable in his testimony, nor is the testimony of opposing witnesses so conclusive on the subject as to render the plaintiff's testimony incredible. It does not appear by undisputed testimony that the train “was overtaken between stations by such storms or indications of high water” as would require him to proceed with great caution under rule 410. There was testimony from which this fact might be well found, but it is not conclusively proven. Nor does it appear that there was any switch at, or in the immediate vicinity of, the washout, by reason of which the speed should have been reduced to 10 miles an hour under rule 128.

2. It is argued that proximate cause is not found by the verdict, and hence that the judgment cannot be sustained. When a train plunges through an unsafe bridge, there is little room to speculate on proximate cause. If the bridge was constructed for the passage of heavy trains over it, and was negligently and unsafely constructed, the destruction of a train, and the loss of human life thereon, must necessarily be contemplated by any reasonable man who built it. He cannot say that he did not anticipate an accident. Such a claim would be puerile. As well might a municipal corporation, who have left an open pit in a street, defend on the ground that it could not anticipate that a traveler would fall into it. The question as to proximate cause was sufficiently answered when it was found that the viaduct was negligently constructed and unsafe, so that an ordinary rainstorm would wash it out, and was not properly inspected on the night in question, and that the plaintiff was injured, in consequence of the washout, without contributory negligence on his part.

3. In this connection it is urged that the verdict of the jury to the effect that the rainstorm on the night in question was not an...