Davis v. Chicago, Milwaukee & St. Paul Railway Co.

The following opinion was filed April 14,1896:

PiNNey, J.

1. We think that the evidence on the part' of the plaintiff was sufficient to require that the case should be submitted to the jury on some, at least, of the allegations of negligence; and that the defendant’s motion for a non-suit, and its request that the jury be instructed to find a verdict for the defendant, were properly denied. As we have arrived at the conclusion that there must be a new trial, we will abstain from any discussion of the evidence, and content ourselves with stating that the case was clearly one for the jury, under proper instructions as to the law, to determine whether the claim of the plaintiff or that of the defendant as to the cause of the accident was the true' one.

There is a question of law presented by these motions,, whether by the contract between the plaintiff and the company, and the terms of the “ drover’s return ticket ” issued under it, upon which he was riding at the time of the accident, the plaintiff is precluded from maintaining his action,, upon the ground that he had assumed all risks of accident and expressly agreed that the company^ shall not be liable' under any circumstances, whether of negligence by their-agents or otherwise, for any injury to me/jf fThis stipulation was part of an entire contract made in "Wisconsin, to be performed in part in Wisconsin and in part in Iowa. It is very well established in this state that a contract for such an exemption from liability by a common carrier is void, as against public policy^ The defendant could not, by any agreement, however plain and explicit, wholly relieve itself' from liability for injuries caused by its negligence or the negligence of its agents or employees. Abrams v. M., L. S. & W. R. Co. 87 Wis. 485, and cases cited. The validity of suck a stipulation was fully considered in that case, and very many authorities were referred to holding1 against the validity of such an exemption; and the doctrine of the case of Railroad Co. v. Lockwood, 17 Wall. 357, in which the ■question of the validity of an exemption in substance the same as the present case was elaborately considered, was approved and followed, and the conclusion was reached that a railroad company could not thus, abdicate the essential duties of its employment, of carefulness and fidelity as a common carrier. This is in accordance with previous decisions of this court there referred to, and the law was held to be the same in the state of Iowa (Hart v. C. & N. W. R. Co. 69 Iowa, 490); so that, both by the law and public policy of the place where made and the states within which the contract was to be performed, the provision in question was void, and it can afford no protection to the defendant in this action. jwe think it plain that the interpretation and validity of this provision are to be governed by the law of Wisconsin, where it was made, as it does not appear that the parties intended to be bound by the law of any other state or country in respect to the contráctil Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 450, and cases there cited. This result is in accord with the common law and principles of public policy in all the states.

jjhe proposition that resort cannot be had to the common law to determine the validity of a contract for interstate carriage or transportation, in the absence of any legislation to the contrary by Congress under its power to regulate commerce, is, we think, without support in reason or adjudicated cases. Until Congress shall act in the premises, it is competent for the parties to make any agreement on the subject not void as against the principles of the common law and public policy, to which resort may be had, as the law of the contract, in determining the validity of any of its provisions. Transportation companies, by reason of their control •over the carrying trade, cannot be allowed to exact any •stipulation they may choose, and arrogate to themselves the right to regulate commerce, in defiance of the common law. and settled principles of public policy. The invalidity of ■such stipulations in contracts relative to interstate transportation has been declared in very many cases in which the principles laid down in Railroad Co. v. Lockwood, 17 Wall. 357, have been applied. In Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 439, it was said that “by the common law of England and America, before the Declaration of Independence, recognized by the weight of English authorities for half a century afterwards, and upheld by decisions of the highest courts of many states of the Union, common carriers could not stipulate for immunity for their own or their servants’ negligence.” £The constitutional grant to Congress of the power to regulate commerce did not supersede or displace the common law, but conferred upon •Congress the power to make such regulations as in its wisdom it saw fit; and, until Congress acts in the premises, the principles of the common law governing such contracts will necessarily apply, and cannot be regarded as obnoxious to the objection that they are regulations of commerce, within the meaning of the constitutional provisioO In the case last cited, it is said that the case of Railroad Co. v. Lockwood “ rests upon the doctrine that an express stipulation by any common carrier for hire, in the contract of carriage, that he shall be exempt from liability for losses caused by the negligence of himself or his servants, is unreasonable and contrary to public policy, and consequently void. And such has always been the understanding of this court, expressed in several later cases,” there cited. Hart v. Penn. R. Co. 112 U. S. 331, 338; Railroad Co. v. Pratt, 22 Wall. 123, 134; Railway Co. v. Stevens, 95 U. S. 655; Bank of Kentucky v. Adams Exp. Co. 93 U. S. 181; Phœnix Ins. Co. v. E. & W. Transp. Co. 117 U. S. 322. These are full and instructive cases showing that the provision in question relied on by the defendant to exempt it from liability to the plaintiff is void.

2. The special verdict in this case is fatally defective, in that the question as to what was the proximate cause of the injury to the plaintiff is not substantially answered by it. The third finding, that the ties of the track from the west end of the trestle to switch stand No. 3 were not in good condition at the time, does not attribute the accident to that cause; nor does the seventh finding, that the defendant company was guilty of negligence which occasioned the injury to the plaintiff, meet the requirements of the rule. The verdict leaves the question of the • proximate cause of the wreck unanswered. “ A special verdict is that by which the jury find the facts only, leaving the judgment to the court.” R. S. sec. 2857. Whether the negligence of the defendant was the proximate cause of the plaintiff’s injury was a vital question, and one sharply litigated; and the defendant had a right to have that question submitted to the jury and. passed on by the special verdict. Unless it is substantially answered by the verdict, no judgment can be given on it, and a new trial will be necessary. Kerkhof v. Atlas P. Co. 68 Wis. 674; Kreuziger v. C. & N. W. R. Co. 73 Wis. 158; McGowan v. C. & N. W. R. Co. 91 Wis. 147. The question here was whether the negligence of the defendant was the proximate cause of the plaintiff’s injury, the defendant’s case going to show that it was not, but that the proximate cause was an entirely independent and adequate one, for which the defendant was not in any way responsible. It was not enough to entitle the plaintiff to recover to show that his injury was the natural consequence of the negligent act or omission of the defendant; but it must'have appeared that, under all the circumstances, it might reasonably have been expected that such an injury would result. A mere failure to ward against a result which could not bave been reasonably expected is not negligence. Atkinson v. Goodrich Transp. Co. 60 Wis. 141, 156; Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469. As was said in McGowan v. C. & N. W. R. Co., supra: “ The plaintiff was not entitled to recover merely because the injury he had received was in consequence of the defendant’s track and roadbed having not been maintained and kept in repair. In order to warrant a recovery, it must have appeared that its failure in this respect was the result of negligence on its part, and that a person of ordinary intelligence and prudence might have expected, as the result of such negligence, that such an injury would occur. . . . The gist of the action is negligence on the part of the defendant, and the relation of cause and effect could be established only by showing that the negligent act or omission of the defendant caused the injury and was its proximate cause.” As was said in Block v. Milwaukee St. R. Co. 89 Wis. 878; “ The negligence is not the proximate cause of the accident unless, under all the circumstances, the accident might have been reasonably foreseen by a man of ordinary intelligence and prudence. It is not enough to prove that the accident is the natural consequence of the negligence. It must also have been the probable consequence.” Barton v. Pepin Co. Agr. Soc. 83 Wis. 19; Huber v. La Crosse City R. Co. 92 Wis. 636; Craven v. Smith, 89 Wis. 119; Guinard v. Knapp-Stout & Co. Company, 90 Wis. 129. The defendant owed to the public the duty of a very high degree of vigilance and care in the structure, inspection, repair, and management of its track; and it gave evidence tending to show that it had performed this duty and had no reasonable ground to expect such an accident. The seventh finding of the special verdict goes no further than to find that the accident was the natural consequence of the defendant’s negligence, and does not find that the plaintiff’s accident was the probable consequence of such negligence, or that such negligence was its proximate cause; nor does this finding refer in any manner to the third finding, in respect to the ties not being in good condition, as connected with or the cause of the accident. Such a defect in the verdict can be supplied by reference to the evidence only in case the evidence relied on for that purpose is uncontradicted. Hutchinson v. C. & N. W. R. Co. 41 Wis. 553; Sheehy v. Duffy, 89 Wis. 12. But such was not the present case. In Abrams v. M., L. S. & W. R. Co. 87 Wis. 485, there was no dispute as to the proximate cause of the death of the horses, and no question was made as to the sufficiency of the verdict. The case turned wholly upon the validity of the stipulation exempting the company from liability for injuries caused by its own negligence, and limiting the amount of its liability therefor.

3. Whether the negligence of the defendant was the proximate cause of the plaintiff’s injury was a vital question in dispute, and it was important that the court,' in its charge to the jury, should have instructed them as to the law in this respect, explaining in wnat aspects of the case the defendant’s negligence could be considered as the proximate cause of the plaintiff’s injury. The charge of the court, like the special verdict, does not deal with this question at all. In submitting the question, “Was the defendant company guilty of negligence which occasioned the injury of the plaintiff?” the court said only: “That is a question for you to answer, and if you find the company was guilty of negligence in this case, which injured the plaintiff, your answer will be, £ Yes.’ If you find it was not guilty of negligence, then your answer will be, £ No.’ ” This, in substance, was all the charge contained on the subject; and, as applied to the evidence, the instruction was an inadequate and misleading one, for it entirely ignored the rule that it was not enough to prove that the injury of the plaintiff was the natural consequence of the negligence of the defendant, but that it must also have been the probable consequence, and that, under all tbe circumstances, sucb an injury might have been reasonably foreseen by a man of ordinary intelligence and prudence. This was an error plainly prejudicial to the defendant, and requires a reversal of the judgment.

4. In the argument of plaintiff’s counsel to the jury, he contended that no threats were made by one of the discharged laborers, named Mike Camp, and that no person was seen near the place of the accident about half an hour before the wreck, as claimed by the defendant; whereupon the defendant’s counsel asked the court to instruct the jury “ that it is a fact established by the testimony that Mike Camp made the threats testified to, and that four persons were seen near the place of the accident about half an hour prior to this wreck, and you are not at liberty to find to the contrary.” This instruction was refused. The facts stated in the instruction were testified to by witnesses of apparent intelligence and credibility, who were in no way impeached or contradicted. The plaintiff’s counsel, under the circumstances, had no right to make such an unfair and reckless assertion, and the only method of counteracting the injurious effect of this manifest impropriety was by asking for the instruction as soon as the occasion for it occurred. ¥e think that the instruction should have been given. TJnder the circumstances stated, the jury would have no right capriciously to discredit the testimony; and the court should have instructed the jury as requested, thus correcting the injurious consequences of the improper assertion. It is not to be tolerated that counsel, by reckless or unfounded statements, shall rule the course of the trial and injuriously affect its result.

Several other questions were argued, but as they may not arise on a retrial we decline to intimate any opinion in respect to them.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

The respondent moved for a rehearing. The following opinion was filed June 19, 1896:

PiNNEY, J.

The counsel for the plaintiff are in error in ■ supposing that the court has held, or intended to hold, that the defendant company, as a carrier of passengers, was not bound to exercise extraordinary care for their safety, but ordinary care only. The opinion refers to the very high degree of vigilance and care the defendant company owed to the public in the structure, inspection, repair, and management of its track, and that the defendant’s negligence could not be considered the proximate cause of the plaintiff’s injury, so as to warrant a recovery, unless, under all the circumstances, the accident in question might have been reasonably foreseen by a man of ordinary intelligence and prudence. It is pointed out that the language of the opinion on the subject of proximate cause, as to whether the accident might have been reasonably foreseen by a man of ordinary intelligence mid prudence, although a correct expression of the law in actions for injuries to property, or where the servant sues his master for damages caused by the negligence of the latter, and the measure of the defendant’s duty is ordinary care, is inaccurate, as applied to the present case, where a passenger sues a railway company for injuries received while being carried on its road, and where the defendant is bound to the exercise of extraordinary care for his safety. It must be conceded that the criticism as to the use of the expression “ ordinary intelligence and prudence,” which was inadvertently used, is well founded. It should have been stated instead, that the defendant’s negligence could not, in the present case, be considered the proximate cause of the plaintiff’s injury, so as to warrant a recovery, unless, under all the circumstances, the accident in question might have been reasonably foreseen by a competent and experienced man accustomed to the structure, inspection, repair, and management of the roadbed and track of a railway, while, in the exercise of extraordinary care and prudence. The opinion is to be considered as modified accordingly. There was no proper instruction, or finding by the jury, upon the question of the proximate cause of the plaintiff’s injury; and the erroneous expression does not furnish, nor do we perceive, any sufficient ground for a rehearing.

By the Court.— The motion for a rehearing is denied.