The following opinion was filed December 21, 1909 :
MARSHALL, J.{dissenting'). I agree with all said in the dissenting opinion by my Brother BarNES, and choose to add a few observations of my own. •
This case presents one of a class of those distressing situations which must be met with courage in administering our *173modified ancient system of negligence law. Tbe fact that the system, in many cases, makes no provision for unfortunates wbo are daily sacrificed upon the altar of industry, nor for their dependent families whose destroyed welfare is a like sacrifice, is a most lamentable defect in our remedial Code. That the subject is, as it is, is one of the most significant illustrations of “man’s inhumanity to man.” It is, I may well say, a most distressing commentary upon the wisdom of the lawmaking power. ’T'is “strange,” ’tis “passing strange” that such commentary should, as it does, apply more strongly to our country than to any other civilized nation on earth, notwithstanding it has been blessed for more than, a century with exceptional liberty of action as regards constructive legislation for the public welfare.
If it were given to courts, by their humanity to man, to supply the want of written law, instead of their sphere of action being confined, as it is, to the mere administration of law as they find it, not turning aside, through pity or charity, to punish upon one side, or afford relief upon the other by taking the burden of misfortune from the backs of the weak and humble and casting it upon those of the strong and capable, nor to make distribution of misfortunes according fi> mere dictates of humanity, nor to look with any greater degree of favor upon one than upon the other, because of situations, or needs, after the manner of equitable arbitration, we could approach such a pitiful result as the one in hand in a different attitude. No suggestion is involved in this, that any one, in reaching the conclusion from which I dissent, was actuated by any less fidelity to the great trust with which we are charged, than the writer. Different mentalities with equal degrees of sympathy for human suffering, and stem fidelity to administer a trust from the standpoint of absolute right as incorporated into the law, see things in different aspects. Hence the greater certainty of many minds reaching the proper standard, than one.
"When the time shall come that the moral sense and con*174science of lawmaking power shall be so stimulated as to devise a practicable system, whereby all sacrifices, like the one in hand, attributable to mere human inadvertences which, in the very nature of things, must always be unavoidable incidents of industrial life, and be as progressive in number and disturbing consequences as are human activities, — will be distributed and added to the cost of things entering into consumption, with a minimum of distress and waste, the vista of the future for all will have much more of sunshine. Sometime the now unnecessary waste and suffering from the inadvertent incidents of human industry will be obliterated and there will be a simple method of so distributing their immediate effects over the general mass of things entering into consumption, as to minimize the individual losses and soften the condition in each case of the one offering up the sacrifice without appreciably changing the general level of mankind served directly or indirectly by the toilers. We cannot doubt the wisdom of lawmaking power, suitably aroused, to attain this end.
With the thought that the foregoing observations are not ■out of place in a legal opinion and may bear fruit, some other day, I will proceed to a brief discussion of this case.
According to the verdict and the undisputed evidence, the deceased was guilty of a want of ordinary care in stepping ■between the bumper of the standing car and that of the engine as the two were closing together, proximately contributing to his death. That serious injury or death from any attempt to pass between the bumpers was highly probable, •seems unquestionable. It must be remembered that as the deceased made the fatal step he faced the engine. He could not 'have helped seeing it and that it was in motion. The engineer could not have well seen him. That the engineer should reasonably have apprehended the deceased might do such a reckless act, cannot, it seems, be thought for a moment. That he should reasonably have apprehended the deceased would be injured, if not clear from the cars, in case the bumpers *175came together, as they often do, as a matter of common knowledge, in case he merely failed to step out from between the •cars before that event, it seems is quite as remote.
At this point we have reached, I think, a fatal infirmity in the court’s reasoning. Such reasoning is to the effect that there was imminent danger, in any event, of the deceased getting injured if the engineer backed his engine more than a few inches, and particularly if he backed so as to close the bumpers together. I do not so understand the evidence. On the contrary, I understand that if the deceased had remained outside the path of the bumpers, though between the end of the car and that of the locomotive, and paid the attention to his surroundings which the engineer had reason to expect he would, there would not have been any likelihood of his being injured. So it seems the case, necessarily, comes down to whether the -.engineer had any reason to expect the deceased would attempt to pass between the bumpers, before there is any room for a •comparison of direct effects of faults as regards the two actors in the tragedy.
A second fatal infirmity, in my judgment, in the court’s reasoning, is the logic indulged in, minimizing the gravity of deceased’s fault in placing his person between the bumpers. ‘“It does not appear,” says the court, “but that he may have taken the step to accomplish his duties, and that, in the ordinary course of discharging his duties, he got into the space ■through oversight, inadvertently, or that the physical condition of the track may have caused him to take this step.” As I understand that, it proceeds directly contrary to the verity in the case that the deceased was guilty of a want of ordinary care proximately contributing to his death. I must view the finding on that subject in the light of the construction which the court has placed on the legislative question; i. e. that the words “any negligence” in the question mean any want of ordinary care. Moreover, according to all the precedents in •the books, and common sense as well, it is want of ordinary *176care, as a matter of law, for a person, in coupling and uncoupling cars, to step between the bumpers where the situation is the same or similar to the one in this case. “He might,” says-the court, only have been guilty of “very slight inadvertence.” Does that not overlook the fact that “very slight inadvertence” is not a want of ordinary care ? If he were only guilty of “very slight inadvertence” the verdict is wrong. So the court’s logic is beside the case, and clearly so in my judgment. “Very slight inadvertence,” or in othbr words negligence, as-this court has uniformly held, is not within the field of responsible causation or defense to it. The decisions to that effect are so numerous that the rule needs but to be stated. Dreher v. Fitchburg, 22 Wis. 675; Ward v. M. & St. P. R. Co. 29 Wis. 144; Lockwood v. Belle Ciiy St. R. Co. 92 Wis. 97, 65 N. W. 866.
As said in,effect in the latter case, this court has adhered, notwithstanding some confusion caused by an opinion now and then, to the classification of negligence as slight, ordinary,, and gross. The first is not actionable. The second is, and the first is not a defense thereto'. The third is, and neither the first nor second is a_ defense thereto. Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 84 N. W. 446.
True, it will be found stated in an opinion now and then,, that any negligence, however slight on the part of an injured person, contributing to his injury, is a defense to his action against another whose want of ordinary care was a proximate-cause thereof, but it has been explained and corrected over and over again (Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 341, 84 N. W. 446), and held that it requires more than mere slight negligence to so operate. The law in that regard is too well understood at this late day to admit of serious question. As said in my opinion in Zeratsky v. C., M. & St. P. R. Co., post, p. 423, 123 N. W. 904, that rule was one of the very tilings the legislature, by the act of 1907, intended to change. But the court thinks otherwise, holding that something more-than mere negligence is required for attack or defense in a *177case of this sort. We must test the verdict in this case and the logic of the court’s opinion accordingly, treating the verdict as necessarily meaning that the deceased was guilty of more than slight negligence, or in other words “slight inadvertence.”
How can one say that the deceased “may have taken the step” that placed him between the bumpers “in the ordinary course of discharging his duties ?” No such movement was required in performing such work. No evidence in the case suggests there was. All the evidence and common knowledge, it seems negative it.
Again, how can one say, as above quoted, without losing sight of the verity that the deceased was guilty of a want of ordinary care, proximately contributing to his death, in placing himself within the zone of imminent danger ? Does not the thought that he may have stepped between the bumpers “in the ordinary course of discharging his duties” run directly counter to such verity ?
Again, where is the evidence that the deceased stepped between the cars “in the ordinary course of discharging his duties,” or evidence “that the physical condition of the track may have caused him to take this step ?” The court does not point to any1. Counsel for respondent does not claim there is any. There is none in fact. So, is not the logic upon which the result here stands, which is a repetition of the logic upon which the learned trial court grounded the decision, the merest conjecture; a substitution of mere possibility for probability and supposition for facts and evidence of facts, contrary to many decisions of this court? Gibbons v. Wis. Valley R. Co. 58 Wis. 335, 17 N. W. 132; Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729; Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 225, 80 N. W. 1020; Gagan v. Janesville, 106 Wis. 662, 82 N. W. 558; Musbach v. Wis. C. Co. 108 Wis. 57, 84 N. W. 36; Clark v. Franklin F. M. F. Ins. Co. 111 Wis. 65, 86 N. W. 549; Hart v. Neillsville, ante, pp. 3, 14, 123 N. W. 125, 129.
The above and a large number of cases repudiate the *178.method of reasoning by which a conclusion is reached on mere supposition that something might have occurred of which there is no evidence. Very striMng instances are those where a person was struck and killed by a railway train in the nighttime, at a railroad crossing, leaving no one to explain how the accident occurred. The idea urged upon the court in such cases that the person killed might have gotten into the pathway of the train under some circumstances that would relieve him from fatal contributory negligence was rejected. Groesbeck v. C., M. & St. P. R. Co. 93 Wis. 505, 67 N. W. 1120; Clemons v. C., St. P., M. & O. R. Co. 137 Wis. 387, 119 N. W. 102. In these and numerous instances that might be referred to, the court was urged to hold that fatal contributory negligence was not shown as a matter of law, or so as to warrant a jury in finding it as a fact, because the burden of proof was on the defendant to prove such fact, and any one of several suggested circumstances, of which there was no evidence, was sufficient to relieve the injured one from any fatal fault, and such circumstances should have been negatived by evidence, or the presumption of due care held- to prevail. But the court rejected that logic as not legitimate, upon the ground that evidence prima facie showing want of due care cannot be outweighed by conjecture.
The last foregoing leads to this fatal infirmity in the court’s logic: If mere supposition could be legitimately indulged in at all to efficiently minimize the prima facie case of contributory negligence established by direct and circumstantial evidence, when the burden of proof is on the defendant to establish the fact in that regard, overcoming the presumption of freedom from such fault, it cannot on the question of superior direct effect in producing the injury. It must be conceded, I think, the burden of proof on that matter is on the plaintiff. It seems the court must have overlooked that fact in reasoning from conjectural situations and happenings, as if the question were whether there was any contributory fault on the part of *179■deceased. That matter, covered by the verdict in favor of the defendant, was confused, it seems, with the new subject, en-grafted onto our system by the legislature, in respect to comparative direct effects in producing the results.
I will not pursue the subject of comparative effects further. Looking only at the evidence, freed from all mere suppositions ■of what might have occurred, of which there is no evidence, we have these plain facts: The deceased, face to the engine which was moving toward the standing car, and observant thereof, or reckless because he was not, but more or less obscured from the engineer’s view, with time to step out from ■between the cars, as he should have done, and as the engineer ■had every reason to suppose he would do, the instant he pulled the pin, and yet where, as a skilled brakeman, he was in no danger, even if he did not step out, he stepped into the place which, of all others, no reasonably prudent person would ordinarily have expected him to, and was transfixed by the bumpers and killed, as he, more than any other person, under the circumstances ought reasonably to have apprehended might be the case. I cannot escape so concluding and that the result here should be accordingly, and that the logic upon which a contrary result has been reached runs counter to the ■general trend of our decisions, modified as they are by the act ■of 1907.
It seems that I should not close this opinion without acquitting the trial court of having reached the conclusion which has been affirmed, except under the mistaken notion, as appears, that he was really powerless to disturb the finding of the jury. He evidently took the law of 1907 as requiring, under all circumstances, submission to the jury of the question of comparative direct effects of the faults of the adversaries and that the finding, however absurd it might appear to him, was binding. He took the act of 1907 as it reads, frankly saying that, in his judgment, the verdict was wrong, but that the legislative command was, in all cases, to take the opinion of *180the jury and that he did not think it was given to bim to reject such opinion., Tbat is my understanding of the learned j udge’s excuse for not setting aside the finding wbicb be was satisfied was wrong. It was in tbat view, it seems, tbat be indulged in speculations, after tbe manner I have pointed out in this court’s opinion, as to bow tbe jury might have reasoned from mere supposition to the result reached, for the purpose of relieving tbe verdict from any suspicion of being characterized by perversity.
Tbe appellant moved for a rebearing, but afterwards withdrew the motion and on March 21, 1910, obtained a writ of error removing the cause to the supreme court oí the United States.