Steffen v. Chi. & N. W. Ry. Co.

• Decision Date: 31 January 1879
• Citation: 50 N.W. 348,46 Wis. 259
• Court: Wisconsin Supreme Court
• Parties: STEFFEN v. CHICAGO & N. W. RY. CO.

46 Wis. 259

50 N.W. 348

STEFFEN

v.CHICAGO & N. W. RY. CO.¹

Supreme Court of Wisconsin.

Jan. Term, 1879.

Appeal from circuit court, Dane county.

Steffen, a section hand, sued the Chicago & Northwestern Railway Company for personal injuries caused by a stone flying from the track as a passenger train was passing, and breaking his leg. There was no direct evidence tending to show what force projected the stone. Verdict and judgment for plaintiff for $1,200. Defendant appeals. Reversed.Smith & Lamb and George B. Smith, for appellant.

Burr W. Jones, for respondent.

RYAN, C. J.

The respondent brought his action for the appellant's negligence, and it was incumbent on him to establish it. Negligence is not to be presumed, in the absence of evidence tending to prove it. A plaintiff charging negligence as the ground of his action takes the onus probandi. The nature of an injury may indeed, in some cases, raise a presumption of negligence. But the respondent's injury is not of such a character. He established no cause of action, without evidence tending to show the appellant's negligence in causing his injury. Whart. Neg. § 421; Morrison v. Construction Co., 44 Wis. 405;Nitro-Glycerine Case, 15 Wall. 524. As the respondent's evidence left the case, his injury appeared the result of unaccountable accident. There was no evidence tending to show where the stone which struck him came from, or how or by what it was put in motion, The whole body of the evidence rendered it most improbable, indeed nearly or quite impossible, that it could have come from that part of the track between the rails, by force of the passing train. All the gravel on that part of the track appears to have been several inches below the cow-catcher, the lowest part of the train. And there was nothing tending to show that the stone could have come from that part of the track outside of the rails. The cause of the accident rested in pure conjecture, without evidence tending to explain it, or to connect it in any way with any negligence of the appellant. At the close of the respondent's evidence, it appeared to be a case of unaccountable misadventure, for which no one was responsible, (Harvey v. Dunlop, Hill & D. 193; Brown v. Kendall, 6 Cush. 292; Nitro-Glycerine Case, supra;) and a nonsuit ought to have been granted when the respondent rested. The appellant, however, gave evidence of some experiments tending to account for the injury. These experiments raise some presumption, perhaps a strong one, that the stone came from the outside of the rail, next to and nearly or quite directly opposite the respondent where he was struck. It appears that such stones, placed on the head of a spike and rested against the outside of the rail, were several times driven by a passing train, at a right angle or nearly so from the rail, with force enough to cause such an injury at such a distance. If these experiments do not account for the accident, it still remains unaccountable. And the case will be considered on the presumption which the experiments raise. The negligence imputed to the appellant is the failure of the boss of some workmen, of whom the respondent was one, to remove the stone upon the approach of the train, so that the injury could not have occurred. If the boss of a gang of mere laborers, himself little or no more, should be held chargeable with notice of such a danger, the law would impute to him knowledge of a law of motion quite new to every member of the court upon the argument of this appeal. But the evidence prima facie establishes that, if leaving such a stone in such a place were negligence, it was the negligence of the respondent himself. The learned counsel for the respondent dwelt much upon the duty of the appellant to keep its track in order. There is no necessity to insist upon the duty of a railroad company to keep its track in good order for the purpose for which it is built, the safe passage of trains. And these workmen appear to have...