Jucker v. C. & N. W. Ry. Co.

• Decision Date: 19 April 1881
• Citation: 8 N.W. 862,52 Wis. 150
• Parties: JUCKER, ADM'R, v. C. & N. W. RY. CO.
• Court: Wisconsin Supreme Court

52 Wis. 150

8 N.W. 862

JUCKER, ADM'R,

v.C. & N. W. RY. CO.

Supreme Court of Wisconsin.

Filed April 19, 1881.

Appeal from circuit court, Fond du Lac county.

Shepard & Shepard, for appellant.

C. A. Eldredge, for respondent.

ORTON, J.

The rule laid down in Improvement Co. v. Munson, 14 Wall. 448, cited by the learned counsel of the respondent, and commented upon and approved in Pleasants v. Fant, 22 Wall. 122, has been substantially recognized by this court in numerous cases. That rule is: “If there is any evidence upon which the jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed, the court cannot take the case from the jury. The question is, is the evidence sufficient to justify a verdict?” By the very terms of this rule the question is not, whether the court would have found a verdict in the case made by the evidence, but whether the jury would have been justified in finding a verdict upon it. The party is entitled to the verdict of the jury, rather than the finding of the court on questions of fact, if the jury would be warranted or “justified” in finding a verdict upon the evidence. When properly considered, there is scarcely a seeming conflict of authority in respect to the rule for granting nonsuits and ordering verdicts by the court in jury trials.

Tested by this rule, ought the circuit court to have granted a nonsuit in this case? We think there was testimony sufficient to justify the jury in finding that the company was negligent, and that the mother of the child used ordinary care, under the circumstances, to guard and restrain it from straying upon the track of the railroad, and to prevent this and similar accidents happening to it. We do not understand that the learned counsel of the respondent relies very strongly upon these two points, but he insists with much more plausibility that there was not sufficient evidence that the injury of the child at the time of the accident caused its death, to be submitted to the jury, or, in other words, that there was not sufficient evidence to justify the jury in so finding. Whether the death of the child directly and naturally resulted from the alleged injury as its proximate cause, is an important question, and as difficult to determine as a like question in criminal homicide, although by a different rule of evidence as to its weight and effect. This being a civil action, a preponderance of the evidence, or a prima facie case unrebutted, upon this question, would justify a verdict as in other civil cases. Where the death did not result immediately or very soon after the injury, as in this case, the question is still more difficult, and would seem to present a very proper case for the testimony of the attending or other physicians cognizant of the facts. But although it is a question of medical jurisprudence, and a proper one for medical testimony, yet I know of no rule established by judicial authority that makes medical testimony in such case indispensible. The jury must determine the question upon the facts proved, as in other cases, and the evidence, whether professional or not, must be sufficient to justify their verdict.

I shall not enter into the refinements which have been put upon the maxim “ In jure non remota causa, sed proxima, spectatur,” but state the rules generally recognized and approved by the authorities, and applied in cases of this sort, by which it must be determined whether the jury in this case would have been justified in finding from the evidence that the injury was the sole cause of the death of the child, and that therefore its death was caused by the negligence of the company. The general rule laid down by Chief Justice Appleton in Moulton v. Sanford, 51 Me. 134, and cited approvingly by Chief Justice Dixon in Sutton v. Town of Wauwatosa, 29 Wis. 21, is as follows: “The cause of an event is the sum total of the contingencies of every description, which, being realized, the event invariably follows. It is rare, if ever, that the invariable sequence of events subsists between one antecedent and one consequence. Ordinarily, that condition is usually termed the cause whose share in the matter is the most conspicuons, and is the most immediately preceding and proximate...