Rideout v. Winnebago Traction Co.

• Decision Date: 13 December 1904
• Citation: 101 N.W. 672,123 Wis. 297
• Parties: RIDEOUT ET AL. v. WINNEBAGO TRACTION CO.
• Court: Wisconsin Supreme Court

123 Wis. 297

101 N.W. 672

RIDEOUT ET AL.

v.WINNEBAGO TRACTION CO.

Supreme Court of Wisconsin.

Dec. 13, 1904.

Syllabus by the Judge.

1. The term “negligence” by itself suggests only inadvertence or want of ordinary care, and however great may be the degree of such want of care, so long as the element of inadvertence remains, willfulness is excluded.

2. The term “gross negligence” signifies willfulness. It involves intent, actual or constructive, which is a characteristic of criminal liability. If one is guilty of inadvertence causing injury to another, that one's fault is denominatedwant of ordinary care. If one is guilty of willful misconduct causing actionable injury to another, the former's fault is denominated “gross negligence.”

3. Since in the first case suggested intention to do the injury, actual or constructive, must be absent and in the second case present, a complaint using language to describe defendant's fault appropriate to both species of misconduct, as if they occurred at one and the same time, and that one included the other, is indefinite and uncertain.

4. Gross negligence does not include ordinary negligence, and proof of the former does not prove but rather disproves the latter.

5. Where a complaint is indefinite and uncertain because of the pleader's confusing the element of advertence with that of inadvertence, ordinary negligence with gross negligence, and the attention of the trial court is called thereto, though not in the most approved manner, it should compel the plaintiff to proceed upon one theory or the other, if both theories can be reasonably spelled out of the pleadings, or give such permissible construction to the pleadings as to confine plaintiff's claim to one species of wrongdoing.

6. Where a complaint has a double aspect rendering it indefinite and uncertain, as above indicated, it is error to submit the cause to the jury upon both aspects, and in case error is committed in that regard resulting in a verdict in favor of the plaintiff upon the ground of gross negligence and ordinary negligence as well, it is error to render judgment thereon because of inconsistency in the findings.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Action by W. K. Rideout and George A. Sarau, administrators of the estate of Christian Sarau, deceased, against the Winnebago Traction Company. Judgment for plaintiffs, and defendant appeals. Reversed.

Action for damages for the alleged wrongful killing of plaintiffs' intestate. The circumstances stated as a ground for a recovery are substantially these: From June 22, 1897, up to and inclusive of the event complained of defendant was a corporation duly organized under the laws of this state, and authorized to operate an electric street railway on various streets, including Merritt street, in the city of Oshkosh, Wis. August 24, 1903, the Uniformed Rank Knights of Pythias in such city, some being on foot and some being in carriages,--one of the former being Christian Sarau,--marched in parade formation along the street specially mentioned, escorted by a military band of twenty-four pieces discoursing music. Some of the marchers, including Sarau, in the exercise of ordinary care walked between the rails of defendant's track located on such street, and others walked on either side thereof. While so doing defendant's servant with one of its cars approached the procession from the rear at a dangerous rate of speed, without giving any sufficient warning to the marchers to yield the right of way before reaching them. The car going at such dangerous rate of speed, without sufficient warning being given as aforesaid, was carelessly, negligently, recklessly and wantonly propelled into the space occupied by the marchers and onto and over said Sarau, causing injuries from which he on the same day died.

Sarau suffered great mental and physical pain from the instant he was injured till death occurred, and plaintiffs as his personal representatives were put to great expense by reason of such wrongful conduct for medical and surgical care of and attendance upon Sarau, and for nursing and hospital bills.

Several times in the complaint the conduct of the defendant's servant, who controlled the car, was characterized as careless, negligent, reckless, willful and wanton, or by words of similar import. Allegations were made appropriate to a cause of action for damages to Sarau, which survived to his personal representatives, and also a cause of action for damages to his surviving relatives, the whole amount claimed being $10,000.

Defendant answered putting in issue the allegations of the complaint as to its servant having negligently operated the car on the occasion in question, and pleaded as the proximate cause of the injury and death of Sarau,--want of ordinary care on his part.

It fairly appears from the record, in harmony with the claim of respondents' attorneys upon the argument of the case in this court, that respondents' right to recover was intended to be grounded on gross negligence. The court, nevertheless, refused to construe the complaint in harmony therewith, and submitted the cause to the jury for specific findings covering the subject of liability for ordinary negligence, and for gross negligence as well. The result was the following verdict:

(1) Sarau came to his death by injuries received at the time and place alleged in the complaint. (2) Defendant's employés were guilty of want of ordinary care and prudence in operating the car at the time of the accident. (3) Such want of ordinary care and prudence was the proximate cause of the injury to Sarau. (4) The motorman was guilty of gross negligence; his conduct was malicious, wanton and reckless, evincing a disregard of consequences to others. (5) The car was going at a speed of 15 miles an hour when it ran through the band, before it reached Sarau. (6) He could not have seen the car approaching him in time to have avoided the collision. (7) The motorman did not try to stop the car upon its becoming apparent to him that it would strike Sarau. (8) When the accident occurred the car was running at the rate of 15 miles an hour. (9) Want of ordinary care on Sarau's part did not contribute to produce the injury. (10) Damages were caused by the occurrence, for doctors' bills and hospital bill $75, funeral expense $421, physical pain and mental suffering of Sarau $500, loss to his surviving relatives by his death $4,500.

After the coming in of the verdict the court changed finding 6 so as to decide that Sarau could have seen the approaching car in time to have avoided the collision.

Exceptions were duly taken to preserve for review numerous questions, including those discussed in the opinion, so far as exceptions were necessary in that regard. Judgment was rendered in plaintiff's favor on the verdict, from which this appeal was taken.

Weed & Hollister and Charles Barber (of counsel), for appellant.

Bouck & Hilton, A. E. Thompson, and John F. Kluwin, for respondents.

MARSHALL, J. (after stating the facts).

It seems that from the time of drawing the complaint to the entry of judgment there was want of appreciation of the broad distinction between ordinary negligence and intentional wrongdoing, the former being characterized by inadvertence and the latter by advertence, the one requiring intent, actual or constructive to injure, and the other being inconsistent therewith. Under the decisions of this court, and by the better rule, it is believed, prevailing wherever the doctrine of comparative negligence does not prevail, as it does not here, that species of wrong, which has been denominated in this and some other jurisdictions gross negligence, is impossible if there is mere want of ordinary care. Therefore to charge that an alleged wrongdoer was guilty of one species of wrongful conduct, and allow a recovery for guilt of the other, or to charge both as characterizing the same wrongful act and allow a general recovery is wrong. A pleading with such an infirmity is indefinite and uncertain and open to a motion on that ground. The practice of charging that one caused injury to another by careless, negligent, wanton and willful misconduct, or of using language of similar import in attempting to state a cause of action is improper. This court so held, in effect, in Bolin v. C., St. P., M. & O. Ry. Co., 108 Wis. 333, 84 N. W. 446, 81 Am. St. Rep. 911, and cases there referred to, and so held expressly in Wilson v. Chippewa Valley Electric R. Co., 98 N. W. 536. In the former this language was used:

“Inadvertence, in some degree, is the distinguishing characteristic of negligence, while misconduct of a more reprehensible character, characterized by rashness, wantonness and recklessness of a person as regards the personal safety of another, has been designated by this court as gross negligence.” That involves “a sufficient degree of intent at least to be inconsistent with inadvertence.”

In the last case cited this court said of the effect of the decision in the Bolin Case as to a wrong of this nature, (one alleged to have been characterized by wantonness and willfulness):

“There is really no element of inadvertence, which is a necessary element of negligence, and hence the term ‘gross negligence,’ as applicable to this class of wrongs, is inaccurate. The conclusion is that when this kind of wrong is charged, as in the present case, though it be called ‘gross negligence,’ it does not logically include ordinary negligence any more than a charge of ordinary negligence includes intentional wrong.”

In Decker v. McSorley, 116 Wis. 643, 93 N. W. 808, it was said that:

“No degree of mere carelessness or inadvertence constitutes gross negligence or willful misconduct.”

And in Watermolen v. The Fox River Electric Railway & Power Co., 110 Wis. 153, 85 N. W. 663, that:

“It is obvious that no degree of mere carelessness or inadvertence, however remote from the care customarily used either by...