Milwaukee & Chicago R. R. v. Hunter

By the Court, Paine, J. The record here shows no exception to the charge of the court below, and we shall therefore examine no questions' made as to its correctness. Some question was made as to whether the record here was not mistaken upon that point, but it is conceded that if so, there was only a general exception. But we do not think that would vary it, as it is well settled that a general exception is not sufficient to reverse a judgment for an erroneous charge, unless it is entirely erroneous, which certainly was not the case here. The principal question is as to the correctness of the ruling refusing to grant a non-suit. Upon that question, the argument for the plaintiff in error concedes that the proof was such as would have warranted the jury in finding negligence on the part of those running the train, which caused the in — 169 — jury. But it is contended that the law requires the plaintiff in such an action, in order to make out a prima facie case, to show that he himself was not guilty of negligence which contributed to the injury; and that so far from showing that in this case, the evidence of the plaintiff showed that he was guilty of negligence. If such is the law, and if such is the plaintiff’s own showing the motion for a non-suit should have been granted. The law is well settled that if the plaintiff in such an action was guilty of negligence which contributed, as a proximate cause, to the injury he cannot recover. But the point is, how is that to be got at, if such negligence existed, is it to be shown as a defense, or is the plaintiff bound to show in the first instance, that he was not guilty of negligence ? This point also has been decided and the burden of proof has been held to be upon the plaintiff. There is certainly a number of authorities that so state the law, and it was so held by this court in Dressler vs. Davis, 7 Wis., 527. I do not propose to enter into a review of these cases. But my own opinion is, the doctrine as stated by them is not sound upon principle. It seems to me directly in conflict with another well settled and salutary rule, that negligence is not to be presumed. And I think the doctrine has grown out of an improper effect given to the case of Butterfield vs. Forrester, 11 East, 61, which is the leading case upon the subject. In that case the defendant had placed an obstruction in the road, and the plaintiff rode against it and was injured. But his own witness, who proved the injury said that he was riding with great violence, and that if he had not been, he might have observed and avoided the obstruction. The jury were instructed that if the plaintiff by exercising ordinary care might have avoided the obstruction and he did not exercise it, he could not recover, and this was held to be correct. The court said, “ two things must concur to support this — 170 — action, an obstruction in the road by the fault of the defendant, and no want of ordinary care on the part of the plaintiff.” Now, I think this case by no means justifies the doctrine in question. The plaintiff’s own evidence showed that he was guilty of negligence, and there was no question as to the burden of proof in the case. The remarks of the court were applicable to that case, and amount to no more than this, that a want of ordinary care on the part of the plaintiff will defeat a recovery, and he having shown such want could not recover. This was no violation of the rule that negligence is not to be presumed; but was only saying that where the plaintiff’s own evidence showed his negligence he could not recover, unless by further evidence, he disproved that inference and showed ordinary care. But this does not at all support the conclusion, that where the plaintiff can show an injury to have been caused to him by the negligence of the defendant, and his evidence raises no inference of negligence against himself, that he is bound in order to establish a prima fade case, to go further and show that he was not guilty of negligence. Such a rule can only rest upon a presumption of negligence for if the plaintiff’s evidence has no tendency to prove any negligence, if he is required to disprove it, it can only be upon the ground that it is presumed. The plaintiff’s negligence seems to me to be as properly matter of defense, as son assault desmesne, in an action for an assault and battery. Suppose the case of Butterfield vs. Forester had been such an action, and the plaintiff’s witness had testified that he first assaulted and struck the defendant, and thereupon the defendant returned the blows which constituted the assault and battery complained of; suppose the court had said the plaintiff could not recover, that two things were necessary to sustain his action, an assault and battery — 171 — by the defendant and a want of any justifiable cause on the part of the plaintiff, could such a decision ever have authorized the rule that in all such actions, even where the plaintiff could show an assault and battery, by the defendant, by evidence having no tendency to show any cause on his part, that he was bound to go further, and disprove the commission of any act that would have justified it ? I think not, and yet, such a conclusion would be just as well supported as the rule which has been based upon Butterfield vs. Forrester. I do not think it rests upon principle, and it must sooner or later be abandoned. This is clearly indicated by a recent decision of the court of appeals in New York, in the case of Button vs. The Hudson River R. R. Co., 18 N. Y., 248. The action was by a widow, for the negligent killing of her husband by the cars of the defendant. The question was whether the deceased was guilty of negligence. Strong, Justice, after referring to the authorities, and stating the rule that the burden of proof was on the plaintiff to show no want of ordinary care on the part of the deceased, then uses the following language: “ It must not be understood that it was incumbent on the plaintiff in the first instance to give evidence for the direct and special object of establishing the observance of due care by the intestate; it would be enough if the proof introduced of the negligence of the defendants, and the circumstances of the injury,prima facie established that the injury was occasioned by the negligence of the defendants, as such evidence would exclude the idea of a want of due care by the intestate, aiding to the result. Ordinarily in similar actions, when there has been no fault on the part of the plaintiff, it will sufficiently appear in showing the fault of the defendant, and that it was a cause of the injury; and when it does • so, no further evidence on the subject is necessary.” Now this seems to me to be saying, that the burden of proof is on the — 172 — plaintiff, but that he need not introduce any proof to establish the fact; that if his evidence does not prove that he was negligent, that will be sufficient proof that he was not. At the end of the case it is stated that “ Selden, J., objected to an implication which he conceived to lurk in the opinion of Strong, J., but which Strong, J., disclaimed, that in the absence of proof of any circumstances importing negligence on the part of the plaintiff, there might be a presumption thereof which he is required to repel, whereas his negligence is to be inferred from evidence and is not to be presumed.” This case makes so wide an inroad upon the doctrine, that the burden of disproving negligence is on the plaintiff, that it might as well have said that such was not the law. But conceding the rule to be as stated, if we examine the evidence offered by the plaintiff at the time when the motion for a nonsuit was made, upon the principle of the case just referred to, we are satisfied that the motion was properly overruled. The evidence showed that the plaintiff was driving from the east to the west with a heavy load, that he was driving slowly, as he must from necessity; that there was a curve in the railroad not far south of the crossing, so that to see south upon the track to any considerable distance, the party must be a little east of the crossing; that the cars approached without any of the usual signals, and ran upon the plaintiff's wagon at the crossing. It further showed that the plaintiff had frequently passed upon the road before, but also, that on that very afternoon the railroad track had been raised, and only loose dirt thrown in outside of the rails, so that the wheels of a loaded team would sink in, and on striking the rails, would have to accomplish a perpendicular rise of from six to ten inches. We are'fully satisfied, as well from the evidence given before the motion for a nonsuit, as from all that was afterwards offered, that the negligence of the company on leaving the highway in this almost impassible — 173 — condition, was the real cause of the disaster. There was, therefore, a clear case of injury, from the negligence of the defendant, established, and we see no circumstance in the proof, at the time of the motion, tending to prove that the plaintiff failed to exercise ordinary care. The night was dark, and any one who has ever driven in a dark night, even on a road with which he is familiar, will know that he cannot always tell his exact locality. And it certainly cannot be required as a legal rule, however wise it may be to exercise extraordinary precautions, that a man thus travelling, even though he knows that he has to cross a railroad, should get out and feel his way along on foot; and that in default of some such course, the cars may run over him at the crossing with entire impunity, without giving any notice of their approach. We are satisfied also that the jury would have been warranted in inferringfrom the evidence, that the plaintiff did not drive upon the crossing when the cars were in the immediate vicinity, as was urged by the counsel for the company. Markley testified that he heard both wagons before he heard the train. One was already west of the crossing, and the other, which was the plaintiff’s, was approaching it. There was testimony that the noise of the train could be heard at a great distance; that circumstance was strongly relied on by counsel, to show the negligence and inattention of the plaintiff. But we infer from it, that at the time the plaintiff drove against the track, the cars were at some distance off, that he was delayed by the difficulty of crossing, and that during the excitement and exertion consequent upon finding himself in such a situation, his attention was so fixed upon his endeavor to extricate himself, that he did not observe the approaching train, which neglected to give any signals. The noise of the wheels, and the horses’ hoofs rattling upon the rails and plank, might, while in that situation, have prevented him from noticing the ordinary sound of approach — 174 — ing cars. But it seems absolutely impossible that both he and his father should have failed to hear the cars, unless they were both deaf, if they were so near immediately before they struck the railroad, that the wagon, if not delayed, could not have crossed without being hit. We are satisfied that the wagon was delayed at the crossing, and that it is highly probable that if the proper signals had been given, the plaintiff and his father might have been able to leave the wagon in time for the latter to have saved his life, and the former to have escaped the serious injury that was inflicted upon him. We think, therefore, it was a clear case of negligence in the defendants, and that upon the rule laid down by the New York court of appeals, the jury would have been warranted in inferring that there was no want of ordinary care on the part of the plaintiff. Nor do we think the evidence afterwards offered was of such a character as to require us to reverse the judgment for the refusal of the court below to grant a new trial, because the verdict was against evidence. There were some admissions by the plaintiff, to the effect that he did not think of the railroad till he struck the track, &c., but these were made immediately after the injury, when his body was in a mangled condition, and his statements were in reply to the inquisitive agents of the company, and must of necessity have been broken, disjointed, and without any attempt on his part to give a connected statement of the facts. All the objections to the character of admissions as evidence, apply with double force to those here offered. The whole matter was left to the jury under a charge, to which, in its general scope, the company certainly could make no objection. They have passed upon it, and we are satisfied with their verdict. And we do not think the newly discovered evidence was of such a character as would justify the granting of a new — 175 — trial. It consisted simply in a statement made by the plaintiff, under the same circumstances in which the others were made, that “if his colt had not baulked it would have been all well enough.” If his horse had baulked, we do not think this should prevent his recovery, if the approaching train negligently failed to give any signal so that he might have saved himself. And although the driving of a horse known to be of that disposition, might, under some circumstances, amount to culpable negligence, yet we think there was nothing in the admission of the plaintiff as sworn to, that would show such to have been the case here. On the contrary, it shows that it was a young horse, whose habits were not confirmed, and the jury would have been well warranted in finding that it baulked from inability to raise a heavy load over the track in the condition in which the company had left it. The other parts of the affidavit are as to admissions of the same character as those referred to, and liable to the same objections. Nor do we think the court erred in admitting evidence of the condition of the track immediately after the injury. It is true, the question for the jury was, what was its condition at the time. But where that is the question with reference to any particular thing, its condition immediately before and immediately after are proper circumstances to be considered. Upon the whole, we think the judgment must be affirmed, with costs.