(dissenting). As I see this case duty compels me to dissent.
When two persons are negligent and injury to one proximately results from the combined negligence of both, it must *554often be a very delicate and difficult question to decide whether the negligence of one was greater than that of the other and contributed in a greater degree to produce the injury. There is no yardstick with which to measure the two acts of negligence, nor scales with which to weigh them. However, the legislature has determined that in certain classes of cases this delicate question shall be decided and that upon its decision shall depend liability, and this court has sustained and applied that law. It is not inherently more difficult to decide than many another question which courts and juries are daily compelled to decide. It is said in the opinion of the court that these questions must ordinarily be questions for the jury, and that they “can only be taken from the jury where there is total lack of evidence to support a finding that the negligence of the plaintiff was slighter, or a total lack of evidence to support a finding that the negligence of the other person contributed in greater degree to the injury.”
With this proposition I entirely agree, but I do not regard it as a complete statement of the legal principles which hear upon the questions in this case.
Negligence “is not a fact to be testified to, hut can only he inferred from the res gestee — from the facts given in evidence. Hence it may, in general, be said to he a conclusion of fact to be drawn by the jury under proper instructions from the court. It is always so where the facts, or rather the conclusion, is fairly debatable or rests in doubt.” Langhoff v. M. & P. du C. P. Co. 19 Wis. 489.
To draw this inference of fact from all the circumstances in evidence has been frequently said by this court to be “peculiarly the function of the jury.” Bohan v. M., L. S. & W. R. Co. 58 Wis. 30, 15 N. W. 801; Fitts v. Cream City R. Co. 59 Wis. 323, 18 N. W. 186.
It has been also called a mixed question of law and fact, which is never taken from the jury except in very clear cases. Pool v. C., M. & St. P. R. Co. 56 Wis. 227, 14 N. W. 46.
*555The question whether the negligence, if any, is the proximate canse of the injury complained of is also an inference of fact, which is under all ordinary circumstances properly an inference to he drawn by the jury. Atkinson v. Goodrich T. Co. 60 Wis. 141, 18 N. W. 764. If the inferences of negligence and proximate cause are peculiarly inferences to be submitted to the jury, it seems to me to follow necessarily that the inferences as to the quantum, or extent of the negligence on each side and the degree to which it proximately 'com tributed to bring about the injury must fall within the same rule. They cannot be properly taken from the jury except in very clear cases where unprejudiced and reasonable minds can come to but one conclusion. In all cases whore the facts, are numerous, the evidence contradictory or involved, and the conclusions in any degree doubtful, the proper inferences on. all of these propositions must be for the jury.
In the present case it seems to me there are unquestionably facts from which reasonable minds might draw different conclusions both as to the quantum of negligence on each side and as to the degree*in which such negligence proximately contributed to cause the injury.
The deceased and his comrades were going to their work as-, their duty required, and they were going in the way they were expected to go. The evidence tends to show that they were-proceeding slowly and carefully; their car was light and could be quickly stopped and lifted from the track out of danger ; they knew that no regular train was due; they also knew there were two or three highway crossings directly ahead of them as well as a station whistling post, and that any approaching locomotive was required to whistle at all of these-places.
On the other hand, the engineer of the approaching engine-knew that he was running wild; he knew, or should have known, that sectionmen would probably be on their way to work; he was driving his engine through the fog at a speed of *556•over twenty miles an hour without whistling at the road crossing’s ; he was in charge, not of a light vehicle which could be ■stopped in few feet distance and taken from the track, but of a ponderous mass of steel and iron which was hurtling’ over the rails at a speed which rendered it impossible of ready control, and which would probably deal death and destruction to •any one rightfully on the crossings or on the track who did not know of its approach .till it emerged from the fog. Knowing all these things, he sounded no whistle and came upon the •deceased and his fellow workmen with his engine of death like a ball shot from a cannon.
Grant that it must be said that the deceased and his colleagues were guilty of negligence, is there no room upon these facts for a reasonable mind to conclude that the negligence of the engineer was not only greater but contributed in a greater degree to the injury ? I think there is ample room for such a •conclusion, and so thinking I cannot agree with the result reached by the court in this case.
I am authorized to state that Mr. Justice Siebeckee agrees with the views expressed in this opinion.
A motion for a rehearing was denied January 31, 1911.