Pickering v. Great N. Ry. Co., 19595[191].

• Court: Supreme Court of Minnesota (US)
• Citation: 132 Minn. 205,156 N.W. 3
• Docket Number: No. 19595[191].,19595[191].
• Parties: PICKERING v. GREAT NORTHERN RY. CO. et al.
• Decision Date: 28 January 1916

132 Minn. 205

156 N.W. 3

PICKERING

v.GREAT NORTHERN RY. CO. et al.

No. 19595[191].

Supreme Court of Minnesota.

Jan. 28, 1916.

Appeal from District Court, Pine County; P. H. Stolberg, Judge.

Action by H. J. Pickering, as administrator, against the Great Northern Railway Company and others. Verdict for plaintiff and from denial of alternative motion for judgment or new trial, the defendant Northern Pacific Railway Company appeals. Reversed.

Syllabus by the Court

Under the common law of Wisconsin the term wanton or willful or gross negligence, such as justifies a recovery though the plaintiff is himself negligent, imports a higher degree of delinquency than does such term under the law of Minnesota; and a charge giving the Minnesota law is erroneous when the Wisconsin law is the governing law.

Under the evidence, applying the Wisconsin law, the defendant was not wantonly negligent so as to permit a recovery notwithstanding the negligence of the plaintiff's intestate.

The question of the contributory negligence of the plaintiff's intestate under the Wisconsin law was for the jury.

The common law of Wisconsin as to wanton negligence was not pleaded; but the parties having tried the case upon the theory that the question of liability was determinable by the Wisconsin law it is so considered on appeal. C. W. Bunn and D. F. Lyons, both of St. Paul, for appellant.

Hurley & Hurley, of St. Paul, and W. P. Crawford, of Superior, Wis., for respondent.

DIBELL, C.

Action by the plaintiff to recover damages for the death of his intestate alleged to have been caused by the negligence of the defendant. There was a verdict for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment or for a new trial.

[1] 1. It is a contention of the plaintiff that the defendant was wantonly negligent and that there can be a recovery though the plaintiff's intestate was himself negligent. Upon the question of wanton negligence the court gave two instructions. The first one was as follows:

‘You are instructed that wanton negligence, whereby liability is incurred irrespective of plaintiff's negligence, is a failure after discovering his peril to exercise ordinary care to prevent the impending injury. In order for the jury to find wanton negligence in this case, it need not find intentional or malicious injury, or the reckless or wanton disregard of John Madden while in a position of peril.’

It is conceded that the language of this instruction is a correct statement of the law of Minnesota. Anderson v. Minneapolis, etc., Ry. Co., 103 Minn. 224, 114 N. W. 1123, and cases cited; Gill v. Mpls, etc., Co., 129 Minn. 142, 151 N. W. 896. It is substantially that of Chief Justice Start in the Anderson Case. The other instruction was as follows:

‘Wanton negligence is something more than more inadvertence. It is an absence of any care on the part of a person having a duty to perform to avoid inflicting injury to the personal rights of another, by recklessly or wantonly acting or failing to act to avoid doing such injury, evincing such an utter disregard of consequences as to suggest some degree of intention to cause such injury. It evinces such disrespect of consequences as to show little short of actual intent.’

This is a correct statement of the Wisconsin law. It is substantially the language of Justice Marshall in Astin v. Chicago, etc., Co., 143 Wis. 477, 128 N. W. 265,31 L. R. A. (N. S.) 158. This case, with others, was in evidence in proof of the Wisconsin law.

An examination of the Wisconsin cases in evidence, including the one just cited, and a comparison of them with the Minnesota cases, indicate to us a radical difference in the legal conception in the two states of the degree of negligence, whether termed wanton or willful or gross, which permits a recovery though the plaintiff is negligent. Expressions vary from case to case in Minnesota as they do in Wisconsin; but the two typical instructions quoted do not define the same legal conception. The term wanton or willful negligence, such as permits a recovery by a plaintiff, himself negligent, imports in Wisconsin a higher degree of delinquency than in Minnesota. In Minnesota it is sufficient to charge a defendant with liability if it be found from the evidence that...