Pickering v. Northern Pacific Railway Company

• Decision Date: 28 January 1916
• Docket Number: 19,595 - (191)
• Citation: 156 N.W. 3,132 Minn. 205
• Parties: H.J. PICKERING v. NORTHERN PACIFIC RAILWAY COMPANY
• Court: Minnesota Supreme Court

156 N.W. 3

132 Minn. 205

H.J. PICKERING v. NORTHERN PACIFIC RAILWAY COMPANY

Nos. 19,595 - (191)

Supreme Court of Minnesota

January 28, 1916

Action in the district court for Pine county by the administrator of the estate of John Madden, deceased, against Northern Pacific Railway Company and Great Northern Railway Company, to recover $10,000 for the death of his intestate while in the employ of the Great Northern Railway company. The separate answer of the Northern Pacific Railway Company alleged that under the common law of Wisconsin, as the same is interpreted by its supreme court, the presence of a railroad track is such an admonishment of probable danger that it is contributory negligence as a matter of law for a person to cross a railroad track without first using his senses of hearing and seeing to the right and to the left, so as to discover any danger of an approaching train or car. The case was tried before Stolberg, J., who at the close of the testimony directed a verdict in favor of the Great Northern Railway Company, and a jury which returned a verdict of $3,000 against defendant Northern Pacific Railway Company. From an order denying its motion for judgment notwithstanding the verdict or for a new trial the Northern Pacific Company appealed. Reversed.

SYLLABUS

Wilful negligence -- meaning in Wisconsin and Minnesota.

1. Under the common law of Wisconsin the term wanton or wilful 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.

Contributory negligence.

2. 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.

Contributory negligence -- question for jury.

3. The question of the contributory negligence of the plaintiff under the Wisconsin law was for the jury.

Theory at trial followed on appeal.

4. 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, for appellant.

Hurley & Hurley and W. P. Crawford, for respondent.

OPINION

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. 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, St. P. & S. Ste. M. Ry. Co. 103 Minn. 224, 114 N.W. 1123, and cases cited; Gill v. Minneapolis, St. P.R. & D. Ele. T. 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 mere 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, M. & St. P. Ry. 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 wilful or gross, which...