Valin v. Milwaukee & N. R. Co.

• Decision Date: 22 March 1892
• Citation: 51 N.W. 1084,82 Wis. 1
• Court: Wisconsin Supreme Court
• Parties: VALIN v. MILWAUKEE & N. R. CO.

82 Wis. 1

51 N.W. 1084

VALIN

v.MILWAUKEE & N. R. CO.

Supreme Court of Wisconsin.

March 22, 1892.

Appeal from circuit court, Oconto county; SAMUEL D. HASTINGS, Judge.

The facts fully appear in the following statement by PINNEY, J.:

This action is prosecuted by Louis Valin, as administrator of the estate of Narcisse Craite, against the railroad company, defendant, to recover damages sustained by the killing of his intestate at a crossing of the railroad company by a passing locomotive and tender. The answer was a general denial of the negligence charged, and, upon trial before a jury, the circuit court directed a verdict for the defendant, and from the judgment entered on it the plaintiff appealed. The contention on the part of the plaintiff was that the cause should have been submitted to the jury, and that the court erred in directing a verdict for the defendant; the defendant contending only that the plaintiff's intestate was guilty of such want of ordinary care contributing to his death as would prevent a recovery. The accident happened at a point on the defendant's road in Oconto county known as “Hale & Chamberlin's Mill,” at which, though not a regular station, trains stopped when flagged. The road runs due north and south at this point, and the mill, with the boarding house, sleeping room, and stable are on the west side of the track, and some cabins of lumbermen are on the east side. There were several families, in all about 30 or 35 persons, living at this place, and in the habit of crossing the track every day back and forth where the accident occurred. An old logging road which goes from Oconto to Porcupine lake, and had been used very generally for about 12 years, runs from the east side of the railroad over and across the track to the west, to the stable, and thence north westerly to the mill, and where it passes over the track there is a slight cut through which the railroad runs, increasing as the road goes south to 3 or 4 feet in depth, and there is a ditch along the track on the east side, over which there is a culvert or plank bridge. The crossing at this point over the main track of the road was planked, constructed, and maintained by the company, and was in general use by Craite and others at all hours in passing and repassing about their lawful business, with the knowledge and acquiescence of the defendant. There was a spur or side track on the west side of the road, the switch post of which stands about 164 feet south of the crossing. The travel on the road over and across the crossing was mainly for logging and lumbering purposes, and there was an old road running from near the crossing parallel with the railroad, about 30 feet distant therefrom, south 200 to 300 feet, used by teams engaged in logging, in depositing logs in piles along and within 5 or 6 feet of the bank of the railroad. The deceased had been engaged for some three weeks in drawing logs on a sled with a span of horses to this point, and unloading them. The accident occurred about noon, March 4, 1890, while Craite was passing over the crossing, driving a span of horses which he had just a few moments before unhitched from the sled used in hauling logs to the eastern side of the track, and while he was driving his team from the sled to the stable on the west side, which was about 90 feet distant from the main track. The locomotive engine which struck them had on it a snow pilot, and was coming from the south and going north. About 100 rods or more south of the crossing there is a swamp through which the railroad passes, and its grade through the swamp is considerably lower, by about 4 or 5 feet, than on the elevated ground near the crossing. Going north from this elevated ground or hilltop to the crossing, the grade is descending, and through a cut from 3 to 4 feet much of the way. The road south of the crossing is straight for over a mile. Considerable testimony was given to show that no signal, either by blowing the whistle or ringing the bell, was given of the approach and passage of the locomotive, and that it was passing at an extremely rapid rate; that it passed through a station 3 miles south at the same rapid rate, without giving any signal whatever. The question to be determined depends principally upon the testimony of a Mr. Netzer, who stood at the time the accident occurred on the west side of the track, about 60 feet from it, and the testimony of the engineer in charge of the locomotive. The particular points in the testimony, so far as material, are stated in the opinion.Ellis, Greene & Merrill, for appellant.

Charles E. Vroman, for respondent.

PINNEY, J., ( after stating the facts.)

The evidence of negligence on the part of the company, to say the least, was quite sufficient to require that the case should be submitted to the jury, unless the alleged negligence of the deceased contributing to his death was so clearly and conclusively proved as to justify the court in taking the case from the jury, and directing a verdict for the defendant; and the vital question is whether, under the peculiar circumstances of the case, the alleged negligence of the deceased is one of fact for the jury or of law for the court. The rule is well settled that, in order to justify the court in taking a case from the jury, the question must be wholly one of law; for if it depends upon controverted facts, upon what facts the testimony establishes, the credibility of witnesses, or what inferences or conclusions ought to be drawn from the testimony, then it is clearly a question to be submitted to the jury. If the jury arrive at a conclusion wholly unwarranted by the evidence, or which may be imputed to passion, sympathy, or prejudice, so that upon the whole case the court can see that justice has not been done, then for these or kindred reasons the court, in the exercise of sound discretion, may set aside the verdict and grant a new trial. But the giving of an absolute direction to the jury to find a verdict is a matter of legal right, founded on facts positively established. If the case involves a fair question of fact for argument, it is for the jury. Negligence is inferred as a conclusion from the facts and circumstances of the particular case, instead of being a fact in and of itself; and inasmuch as each case depends so much upon its peculiar combination of facts and circumstances, and the inferences to be drawn from them, a decision in it cannot be considered as a precedent binding or controlling in other cases. “Negligence is almost always to be deduced as an inference of fact from several facts and circumstances disclosed by the testimony, after their connection and relation to the matter in issue have been traced, and their weight and force considered. In such cases, if unbiased men would differ as to such inferences, then they cannot be made without the intervention of a jury, although all the witnesses agree in their statements, or there be but one statement which is consistent throughout.” Per CASSODAY, J., in Hill v. City of Fond du Lac, 56 Wis. 242, 14 N. W. Rep. 25, cited and confirmed in Nelson v. Railway Co., 60 Wis. 323, 19 N. W. Rep. 52. In the case last mentioned it is held that “it is only when the inference of negligence, or the absence of it, from the undisputed facts proved, is inevitable, that the court will direct a verdict. In all cases in which such inference is in doubt, giving to the testimony the construction most favorable to the party charged therewith, the question of negligence is for the jury.” Langhoff v. Railway Co., 19 Wis. 496;Nelson v. Railway Co., 60 Wis. 320, 19 N. W. Rep. 52, and cases there cited; Kaples v. Orth, 61 Wis. 533, 21 N. W. Rep. 633;Hoye v. Railway Co., 62 Wis. 666, 23 N. W. Rep. 14;Hoye v. Railway Co., 67 Wis. 14, 15, 29 N. W. Rep. 646;Seefeld v. Railway Co., 70 Wis. 216, 35 N. W. Rep. 278;Winstanley v. Railway Co., 72 Wis. 376, 39 N. W. Rep. 856;Duame v. Railway Co., 72 Wis. 523, 40 N. W. Rep. 394;Abbot v. Dwinnell, 74 Wis. 525, 43 N. W. Rep. 496; and many other cases in this court might be cited to the same effect. It is equally well settled by adjudicated cases that the burden of proof of contributory negligence is ordinarily on the defendant. Randall v. Telegraph Co., 54 Wis. 147, 11 N. W. Rep. 419;Kelly v. Railway Co., 60 Wis. 482, 19 N. W. Rep. 521;Bessex v. Railway Co., 45 Wis. 483; Railroad Co. v. Gladmon, 15 Wall. 401. And in any event, however it may appear, the proof of contributory negligence must be clear and decisive, not leaving room for impartial and unbiased minds to arrive at any other conclusion, in order to warrant any absolute direction to the jury on that ground. In view of these well-established principles, we are to consider whether the facts and circumstances disclosed in the testimony warranted the direction in question.

The defendant, in support of the ruling of the circuit court, relies (1) upon the general rule, often repeated in cases of this character, that one approaching a railroad crossing, who may by looking have a timely view of an approaching train, is bound to look and listen for its approach before attempting to cross the track, and that a failure to do so is negligence; (2) that immediately before the locomotive reached the crossing the deceased saw it, while yet in a position of safety, but rashly and recklessly rushed in before it, and, in attempting to cross the track, lost his life.

The particular facts and circumstances of the case seem to modify most materially the view taken by respondent of the conduct of the deceased. On the day in question the deceased was engaged in drawing logs with his team, and unloading them on the south side of the logging road, near the crossing, in piles extending along the bank of the railroad in a southern direction, as already mentioned. He had been for about three weeks similarly engaged, and was, no doubt, familiar with the time of passage of day trains during his usual...