The following opinion was filed December 21, 1909:
Maushall, J.(dissenting). Truly, as an eminent writer said many years ago, “To dare; that is the price of progress.” -“It is necessary, for the sake of the upward march of the human race, that there should be proud lessons of courage permanently on the heights.” Looking at the revolutionary character of ch. 254, Laws of 1901) (sec. 1816, Stats.), from that standpoint alone; considering it as a striking public conception of the needs of new conditions and expression thereof, independently of fundamental principles, it responds in full measure to the sentiment of the literary philosopher. To that extent it is admirable; but viewing it, as We must, from the standpoint of our constitutional system, and legal principles settled by the courts, not within the province of legislative authority to disturb, one can but be impressed with the idea-that the limits upon legislative power were not carefully studied, neither was the meaning of significant terms in the law, as defined and settled in the common law and judicially recognized for ages, clearly comprehended.
It may be that the times called for such a radical change of human responsibility as Was attempted to be wrought by the *438act. It may be that they called for still greater changes. I would not taire issue thereon. That impatience with existing law and its administration was the mainspring of the legislation, and that such impatience dimmed the pereeptives somewhat as to fundamental principles, I cannot doubt.
I must look upon the legislature as a body of wise, intelligent men, who, either as a whole, or by the particular ones who. were permitted to cast the legislation, knew what they desired to do and used language to that end. “If the end be-legitimate” and the manner of reaching it be “appropriate to that end,” in any reasonable view, of course I would sustain the law without reluctance, regardless of my personal idea of the policy thereof. I would not interpolate words, not in place by necessary implication, nor substitute one word for another in order to read out of the law a meaning which is not there in its literal sense, and which, looking at the conditions which moved the enactment of it, it seems that neither-the legislature, as a whole, nor those particular members, or assistants who were permitted to- frame the law, intended. I would take the law as I find it, and sustain it if it be legitimate, and judicially nullify it if it be not.
I am not unmindful that courts go a great way, and properly so, to save a law from absurd consequences, and particularly from condemning it as unconstitutional, striving to read therefrom a meaning which is legitimate and can fairly be said to be within the reasonable scope of its language, resolving all reasonable doubts to that end; but to nullify the will of the legislature by attributing to its language a meaning notintended, though the effect thereof might be to save the law from condemnation as void for uncertainty or unconstitutionality, is as wide a departure from the judicial function as to condemn it when not clearly outside constitutional limitations. It were better for the public interests, and would give greater dignity to the lawmaking power, to take the legislative ideas as found expressed, if they can be discovered *439reasonably, and give effect to' them or not according as they are within or without proper boundaries of legislative effort.
In scanning an act of the soft of the one before us we can no more shut our eyes to the present method of producing laws, than we can to the conditions which lead to them, in determining their character and constitutionality. The former sheds much light on the legislative purpose, and the latter as much effect upon the weight to be given to the fact of legislative approval. Not on the mere policy of the legislation, for that is not a field for judicial exploration, but on the question of whether the enactment is within or without the fundamental limitations of legislative authority.
While the principle is as vital now and of as much dignity as ever, that the judiciary must pay such high regard to the lawmaking power as not to place the stamp of judicial condemnation upon its work, unless it transcends, beyond reasonable doubt, constitutional limitations, in determining whether it does or does not, some, if not all, who are called upon to weigh the matter, will give a measure of consideration to the great change which has come about in recent years in the manner of making laws. ' That enactments, under present conditions, have some less weight of prima facie support from the mere incident of legislative approval, with some judicial students and administrators, than formerly, is most natural.
The act in question has been one of the most troublesome pieces of legislation with which the court has ever had to deal. I think all agree that it was framed by a layman or laymen, or by some person, or persons, without proper conception of legal terms and the scope of legislative authority, or the thought was to cut loose from judicial learning and to rise words as they are ordinarily understood by people generally in common every-day life. That is strikingly apparent, as is indicated in Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 119 N. W. 309, 316, in the obvious, asT think, attempt to take from the court its constitutional authority to deter*440mine when, on the evidence, there is a controverted question of fact for submission to the jury, and to take from it the judicial function'of determining what elements, particularly those of proximate cause, in the legal sense, make up a case of responsible fault.
The court is commanded by the legislation to submit specific questions to the jury, evidently, I think, as the ones involving responsible fault. It is declared that, “In all cases under this act the question of negligence and contributory negligence shall be for the jury” (sec. 1816, subd. 5) ; taken literally, a clear invasion of the judicial function. In the Kiley Case, as now, I was constrained to give the legislature credit for intending just what it said, and to hold that, since it exceeded its power in so invading the judicial field, and would doubtless not have passed the act at all, independently of such invasion, the whole act was unconstitutional. What the law is, what it has been, the meaning of legal terms, what constitutes a question of law and what constitutes a question of fact for a jury, and whether there is the latter or not, and when a controversy should be submitted to a jury as involving disputed matters of fact and when it should not; are all judicial questions with which the legislature has nothing to do under the constitution. Those principles are elementary. A failure to firmly maintain them would be treason to the paramount written law. That the lawmaking power would considerately desire not to have them maintained, or that it would fail to award proper merit for their strict maintenance, I would not think for a moment. However, the fact, as seems to the writer, that those principles were overlooked, as said in my independent opinion in the Kiley Case, brings into action as applicable, to some extent, to the legislation, the rule that when a court reaches a conclusion as to a matter of fact under a misconception of the law, or by overlooking it altogether, the ordinary presumption as to its correctness does not obtain.
*441There was no división in the Kiley Case, as I understand it, as to the validity of the law, taking it as it reads, and there .probably would not be now. It was saved then, as in ■the ease at hand it is to some extent mow, by reading out of it, by rules of construction, a meaning which I cannot discover, applying such rules as I understand them, particularly the paramount one, that until there is uncertainty of sense there is no room for construction.
In now dealing with the act in a different situation than in the Kiley Case, it is more evident than ever that either the commonest principles of the law of negligence, intrenched in our jurisprudence, were overlooked, or there was a purpose to entirely change them. In reaching this conclusion I proceed thereto, all the time trying to get the legislative meaning out -of the law, rather than to put such meaning into it, or a meaning which will sustain it.
Now, in one aspect of the case, whether the trial court was right in holding that, on the evidence, there was no jury question as to whether the act of the appellant contributed, directly, less than that of the engineer of the passenger train, to produce the accident, depends on the meaning of the law. In my opinion, certainly, if the language of the legislative questions is to be taken literally, there was no jury question, as the learned circuit judge held. But it is said that it is not to be so taken.
Possibly the purpose of the legislature was to adopt, somewhat, the principles of comparative negligence. On such principles, there was room in the evidence, perhaps, to say that one of the negligent individuals was in greater fault than the other. But how can we say such was the purpose ? Comparative negligence, generally speaking, contemplates degrees of fault and responsibility on the party guilty of the highest degree thereof. There is no such idea of comparative negligence in the act in question.
In the published law, in large black letters, at tire begin*442ning of sec. 1816, subd. 4, we read tbe words “Comparative-negligence,” but those words were not in the act as passed. They have been added by the person who happened to be employed to prepare the law for publication. "Whether he was layman or lawyer we do not- know. Though the editor chose-to characterize the section as dealing with comparative negligence, when we read subd. 2 and subd. 3, which precedes it, we see comparative fault is not dealt with at all, nor proximate cause, as the same is understood in the law of negligence. Only comparative direct effects seem to have been in the legislative mind. Responsibility is not made to depend on fault in its proximate relation to consequences. Under the law, as it reads, there may be want of ordinary care, to any degree, yet, unless it directly produces the result complained of, there is no liability. Thus leaving out of view the numerous situations where there may be responsible fault by the rples of the common law, though not producing, directly, the injury at all; and making direct agency in producing the result the test of responsibility, in cases where the elements of proximate cause, which by the ordinary law, and the law- of reason, are essential to responsibility, do- not exist at all.
.Subd. 3 requires the court to ask the jury whether the defendant was guilty of negligence directly contributing to' the injury. What does that mean? Literally, as indicated, it means, was the defendant guilty of any negligence which contributed, in a physical sense, to produce the injury. Want of ordinary care is not, necessarily, within the meaning at all, nor the essential elements of proximate cause. All that is required to call 'for an affirmative answer to the question, is some negligence, however slight, and some consequent direct effect in producing the injury. These observations apply likewise to the legislative question required to be submitted as to the plaintiff’s fault.
That the legislature intended to provide, as above suggested, hardly seems probable, but nothing else, in my judgment, can be read out of the act.
*443It seems that, because of impatience with the doctrine of proximate cause, which has been such an important element in the law of negligence in England and this country for generations, and impatience with the common distinction between-mere negligence and want of ordinary care, it was thought to-rid the law of those matters, so abstruse to laymen, but so very plain to the trained lawyer, and make any degree of negligence of a person, whether of. the dignity of the want of ordinary care or not, and any degree of direct physical causation, whether characterized by- the element of natural and 0 probable result, or that of reasonable anticipation of injuring-another or not, sufficient for responsibility, even though the degree of real fault on the part o'f such other be much greater than that of such person, if it does not in greater degree, immediately cause the result.
The third question to be submitted under the act, clearly,. ■it seejns, must be read in connection with the other two; was the “negligence of the” plaintiff “slighter ... as a contributing cause to the injury than that of the” defendant? It. should be noted that the question is not, was the negligence-of the plaintiff slighter and did it contribute in greater degree, etc.; but was it slighter ... as a contributing cañóse,. etc. Consistently with the first two questions, by necessary implication, “direct” should be read before “contributing.” In other words, the inquiry required is, was the negligence of the plaintiff less than that of the defendant as a direct contributing cause of the injury.? That plainly makes the-comparison not between degrees of fault, but between degrees of direct physical production of the result. True, we must confess at every step, it is almost incomprehensible that the legislature could have intended -any such result, but the law seems to read so very plain that I can see no way to deal with it other than by giving effect to it in its letter, so far as constitutional, or condemn it as .void for uncertainty.
I do not overlook that subd. 4 provides that the plaintiff shall recover if defendant’s negligence was greater and con*444tributed in a greater degree, etc., thus speaking of comparative degrees of fault as well' as- of direct interference to produce the result; but the questions required to be submitted are inconsistent therewith and are so precise that it seems they must be controlling.
Now, in the judgment of the court, in order to malee the act of 1907 a sensible, workable, constitutional piece of legislation, it is compelled to add to the help thereto afforded in Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 119 N. W. 309, by holding, in the whole, that, when the legislature commanded the submission of certain questions-on the subject of negligence, it did not intend to make them, necessarily, sufficient to settle the ultimate question of responsibility and could not, legitimately, prevent the submission of other questions necessary to fill out a case in that regard; and by further holding that the language of subd. 5: “In all cases under this act the question of negligence and contributory negligence shall be for the jury,” must have added thereto, by necessary implication, something like this, when the facts in that regard are in such doubt that a jury on the evidence could reasonably find either way. Also the word “negligence,” in each of the three legislative questions, must be read as, want of ordinary care, the word “directly” in the first two questions, must be read as proximately, and the words, “whether the negligence of the party so injured was slighter or greater as a contributing cause to the injury than that of the company,” etc., read as, whether the want of ordinary care of the party injured was less and contributed less, proximately, to produce the injury than that of the company, etc., thus harmonizing the law with some rational idea of comparative negligence.
I cannot consent to the radical necessary changes of language indicated. I think it violates the plain intent of the act. Absurd almost, if not quite so,' as the law is-, viewed as I view it, I am constrained to believe that those who had to do with drafting it meant just what they said and nothing else. *445I cannot convict them of having been so wanting in knowledge of legal principles, common even among laymen, as to have-put words together as they did and yet intended the radically different meaning the court has ascribed to those words. I do not know of any instance of such changes from the literal sense of an enactment having been made in the name of judicial construction as have been made in this one. It seems to me the work has been one of reconstruction, which does less credit to the lawmaking power than would condemnation of the act altogether.
Looking at the'aet as I do-, I cannot come to any other conclusion than the learned circuit judge did. Under the act,, as I read it, the case had to turn on whether fault, as regards direct effects, regardless of degree otherwise, of the engineer, contributed, not proximately, with all elements that word implies, but directly in greater degree to produce the injury than like fault of the plaintiff likewise contributed. In other words, the question was, did defendant’s fault, regardless of the quantum thereof, more than plaintiff’s, at the instant of the collision, lend greater effectiveness, regardless of the elements of responsible causation as understood universally in the law of negligence, than did like fault on the part of plaintiff, to produce the result complained of. I think the members of the court would easily unite in saying that the evidence did not present any jury question on that subject; that when we come down to the instant of the injury, leaving out of view the degree of fault committed outside the period of time in which a collision was inevitable, the act of appellant was at least as promotive of the catastrophe as that of respondent.
The appellant knew the passenger train was nearly due and that it was necessary to go about his duty of setting out the special signals in such cases, in ample time for him to have performed that duty before such train entered the region of unavoidable danger. He neglected to do that without any *446justification whatever. He heedlessly sat down in the ea-boosé to take a lunch, even after considerable inexcusable delay. In short, he acted regardless of the imminent danger he was in. The engineer, at the worst, ran his train, mindful •only of the special required indications of a train being in his way. If appellant, even after considerable inexcusable •delay, had left his caboose, he would not have been injured. His being in the caboose without putting out the customary •signals, and the engineer not running his train upon the theory that the men on the one ahead might neglect their duty, were the immediate causes of his injury. Respondent had!' •évery reason to expect the passenger train, and that the engineer thereof would expect to be intercepted by the special ■signals required under the circumstances. The latter had no reason to expect the freight train would be in his way, barring accidents, and then not without the special signals being out to warn him. How can one say, facing these premises which seem to be very clear, that at the instant the passenger train entered the space, rendering the accident inevitable, the degree of reasonable anticipation of a personal injury happening to some one was greater from the standpoint of the engineer than from that of appellant ? I cannot, in any view, get beyond this point and appreciate how the learned trial court could not.
The respondent moved for a rehearing. In support of the motion there was a brief by Greene, Fairchild, North & Parker, attorneys, and C. H. Van Alstine, of counsel; and in opposition thereto a brief by Wigman, Martin & Martin.
The motion was denied February 1, 1910.