Dohr v. Wis. Cent. Ry. Co.

• Decision Date: 06 January 1911
• Citation: 144 Wis. 545,129 N.W. 252
• Parties: DOHR v. WISCONSIN CENT. RY. CO.
• Court: Wisconsin Supreme Court

144 Wis. 545

129 N.W. 252

DOHR

v.WISCONSIN CENT. RY. CO.^d1

Supreme Court of Wisconsin.

Dec. 6, 1910.

Dissenting Opinion, Jan. 6, 1911.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by P. A. Dohr, administrator, etc., against the Wisconsin Central Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to enter judgment for defendant.

Among references cited upon the part of the appellant were the following: Ives v. Railway Co., 128 Wis. 357, 107 N. W. 452;Ransom v. Chicago, etc., Ry. Co., 62 Wis. 178, 22 N. W. 147, 51 Am. Rep. 718;Kiley v. C., M. & St. P. Ry. Co., 138 Wis. 215, 119 N. W. 309, 120 N. W. 756;Zeratsky v. Railway Co., 141 Wis. 423, 123 N. W. 904;Boucher v. Wis. Cent. Ry. Co., 141 Wis. 160, 123 N. W. 913;Gumz v. Wis. Cent. Ry. Co., 52 Wis. 672, 10 N. W. 11;Hinz v. Chicago, B. & N. R. Co., 93 Wis. 16, 66 N. W. 718;Atkinson v. Goodrich T. Co., 60 Wis. 141, 18 N. W. 764, 50 Am. Rep. 352;Owen v. Telephone Co., 126 Wis. 412, 105 N. W. 924;Hackett v. Ry. Co., 141 Wis. 464, 124 N. W. 1018.

Among other references cited upon the part of the respondent were the following: Bodenheimer v. C. & N. W. Ry. Co., 140 Wis. 623, 123 N. W. 148;Anderson v. Horlick's M. M. Co., 137 Wis. 569, 119 N. W. 342;Clary v. C., M. & St. P. Ry. Co., 141 Wis. 411, 123 N. W. 649.

Winslow, C. J., and Siebecker, J., dissenting.John L. Erdall and W. A. Hayes (A. H. Bright, of counsel), for appellant.

Martin, Martin & Martin, for respondent.

TIMLIN, J.

In this case the jury found the decedent and the defendant each guilty of negligence contributing to cause death, and that the negligence for which the defendant was responsible was greater than that of the decedent, and contributed in a greater degree to the injury and death of decedent. The case is presented by counsel for the appellant describing the negligence of decedent as gross negligence, or a very high degree of ordinary negligence, while the counsel for respondent minimizes this and contends that the facts show gross negligence on the part of the other erring servant of the appellant.

As we look at the facts, neither of these contentions can be upheld. On a very dark, foggy morning on September 12, 1908, the decedent, section foreman for defendant, started out at 7 o'clock with another section man on his hand car, bound west from Sherwood Station to a point called High Cliff Junction about 1 1/2 miles distant. Between Sherwood and High Cliff, and a mile west of Sherwood, there is a whistling post for that station; a quarter of a mile further west a highway crossing. The first regular train from the west was due at Sherwood at 7:42 o'clock that morning, and this would give the hand car time to reach High Cliff. Decedent went on the hand car at the usual hour of going to work in the discharge of his duty, and he had on the hand car some tools and implements and lunch pails, and proceeded at a moderate rate of speed without stopping until the moment of collision, but looking and listening for an approaching train. Irregular trains were liable to be sent over this road at any time. The section men were requested to look out for all passing trains and were furnished with time-tables of regular trains. The collision was with an irregular train. The verdict of the jury that the deceased was guilty of lack of ordinary care, which contributed to cause his death, is well supported on this evidence, but there was nothing of extraordinary recklessness in going out to work on a very foggy morning in this way. At 6:50 o'clock there left Menasha, or Menasha Junction, east-bound, a locomotive engine and caboose, which collided with this hand car at a point about 4,000 feet west of Sherwood. There was evidence tending to show that the locomotive engineer failed to sound his whistle at the first highway crossing west of Sherwood, or at the milepost one mile west of Sherwood, and was proceeding eastwardly at the rate of 22 miles per hour in this dense fog. There was also evidence tending to show that the headlight of this locomotive engine had been accidentally extinguished prior to the collision, and also that it was not feasible to tell, from the engineer's position in the cab on a foggy day, whether or not the headlight was burning. There was here no more than ordinary negligence. The rate of speed was not unusual, although rather high for an irregular train in such a fog; the failure to sound the whistle was to some degree explained, but not excused, by the difficulty of determining the exact location of the engine in the fog. The lack of headlight was not known to the engineer. He was running ahead of the passenger train. So that instead of measuring gross negligence, or a very high degree of ordinary negligence, against the like we are measuring ordinary negligence against ordinary negligence and the question is, Was there, as required by our statute, evidence from which the jury might say that the negligence of the decedent was slighter than that of the engineer, and the negligence of the engineer contributed in a greater degree than did that of decedent to cause the death of the latter?

Each of these employés of the defendant was, we presume, discharging his duty as such in good faith. The decedent took the chances of going against an irregular train in this fog, relying upon his ability to escape and remove his hand car after hearing the whistle or seeing the headlight. He had full information that he was expected to protect himself against any irregular train that might happen along. This lack of care had the proper causal connection with his death, recognized in the law as proximate cause. The engineer should have known that there might be travelers making the crossing, or section men working on the track, and he should have sounded his whistle at the crossing and at the milepost, and in case he could not see the crossing post or milepost, he should have sounded his whistle quite continuously, as a warning to section men, and perhaps should also have decreased his speed to about that of a ordinary vehicle.

When there is a collision between two vehicles traveling in opposite directions on the same track and the ordinary negligence of the person in charge of each vehicle has caused the collision, and one of such persons is injured or killed, the court must, notwithstanding subdivision 5 of section 1816, St., as amended by chapter 254, Laws 1907, when the point is properly raised, search the evidence and ascertain whether anything appears from which the jury would be authorized to find that the negligence of the injurer was greater and contributed in a greater degree to cause the injury, than that of the injured servant. Kiley v. R. R. Co., 138 Wis. 215, 119 N. W. 309, 120 N. W. 756. The same interpretation was given to a similar statute, section 2323, St. 1898, and cases in notes. In all cases in any wise doubtful, the question should be submitted to the jury. Id.

In Zeratsky v. C., M. & St. P. Ry. Co., 141 Wis. 423, 123 N. W. 904, it is recognized that the question, whether the negligence of the injured was slighter than that of the injurer may be a question of fact or one of law. In case the evidence on this point is uncontroverted and permits of only one inference, it is for the court to decide this question. The respective negligences are not to be measured or compared merely by the old classification of slight, ordinary, and gross. In that case, the plaintiff was a rear brakeman on a freight train and omitted a duty imposed upon him by rule of his employment, to go back and signal any on-coming train whenever his freight train stopped on the main track. But his superior, upon whom the heavy responsibility of the care of life and property rested, the conductor who had charge of the train, had detached the locomotive, left the freight train, or part of it, standing on the main track, and departed for a station some distance ahead without even signaling to the plaintiff that the train was to make a stop. This was most culpable faithlessness and negligence in a trust involving the lives and safety of subordinates and endangering the lives of passengers on other trains. The train dispatcher was also negligent, and perhaps the conductor of the passenger train following the abandoned freight. Zeratsky attempted to excuse his delay in going back to signal the passenger train following. It was held that it was for the jury to determine whether the negligence of the other servants of the defendant was greater than that of the injured employé, and contributed in a greater degree to cause his injury.

Boucher v. Railroad Co., 141 Wis. 160, 123 N. W. 913, was a closer case on this question, but it was considered that there was evidence from which the jury was authorized to infer that the injured employé might have relied on the other negligent employé of higher rank and greater responsibility to properly respond to the signal given, and so relying stepped into a place, deadly if the other negligent employé did not properly respond to the signal given, but not so if the signal was properly responded to. The injurer negligently failed to properly respond to the signal given, moved his engine further than was necessary, while the injured servant was in a somewhat perilous position at the best, and in a position calling for great care on the part of the engineer. It was held that whether the negligence of the engineer was greater and contributed in a greater degree to cause the injury, was for the jury.

In Clary v. Railroad Company, 141 Wis. 411, 123 N. W. 649, the jury found the plaintiff not guilty of contributory negligence, thus making a verity of the lesser density of fog, the reliance on his superior, the impossibility of conforming to the rule, the abrogation of the rule by nonuser and consent, and also those facts which tended to support that finding. Here the finding of the jury is the other...