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

PiNNET, J. The finding of the jury is, in substance, that the presence of ice on the outside of the track at the place-of the accident was the efficient cause of the plaintiff’s injury ; but there is no finding that this was owing to any fault or negligence on the part of the defendant, nor is it found that the track, by reason of such ice, was rendered.' unsafe or dangerous to those engaged in operating the defendant’s cars. That the plaintiff was not entitled to a judgment on such defective verdict is well settled (Kelley v. C., M. & St. P. R. Co. 58 Wis. 74, 77; Sherman v. Menominee R. L. Co. 77 Wis. 23), unless the court can say as a matter of - law that negligence is clearly and decisively shown by the uncontradicted evidence; and it is upon the ground that negligence of the defendant is thus shown that the judgment is sought to be maintained. The evidence is that the plaintiff was on the side of the track by the car which had just stopped. He had walked along beside the cars, waiting for them to stop, so that he could put the coupling pin under the wheel, and he had [131] stooped over for that purpose. He testified: “ I went head first towards the car on some ice. I ain’t sure. My head either struck the oil box or the wheel. I fell on ice; loose ice, too. I slipped on the ice.” Another witness testified: “ There was ice there, quite a good deal. The track and ties were covered with snow and ice. The rails were above the lay of the ground, and the snow and ice came up two thirds to the top of the rail. It looked as though it had been thrown there from the inside of the rail. Some was loose and some was frozen. I think that the section man, in flanging off the tracks, had thrown this to one side, and it had melted there and frozen. I don’t know especially. It had been thawing the day or a couple of days before. . . . That is what I spoke of as the icy condition.” Another witness testified that there ivas ice and snow just on the outside of the rail almost on the top of the rail; and another, that he “could notice ice there, and loose ice; ” and still another, that “ it was icy clear along the track outside from between, the flanges. It was thrown up to one side of the rail right alongside of the rail, not very far off. It seemed to have been thrown out from the inside of the track, just as if it was thrown out loose. That ice came pretty close to the top, I should think.” That he did not examine the track very closely oh either side. “There were two or three inches of ice there, I imagined; I couldn’t say. It appeared to be a little snow or ice that had been thrown out from the flange of the rail.” While this evidence may be fairly said to be uncontr.a.-dictecl, it does not follow that it is sufficient and so clear and decisive as to justify a finding thereon, as a matter of law, that the defendant was guilty of negligence by reason of the track being in the condition described; nor does it clearly show that the track was in an unsafe or dangerous condition to those operating cars over it. There is no evidence to satisfactorily show how long the ice had been there, nor how [132] considerable it was in quantity, nor bow mucb of it was loose. A general condition of sbpperiness, without more, by .reason of snow or ice, probably could not be regarded as a defect, or its presence as proof of negligence. Chamberlain v. Oshkosh, 84 Wis. 289. Tbe evidence is too uncertain and equivocal to authorize the court to pronounce, as a matter of law, upon the question of negligence. Negligence, as a general rule, is a question for the jury, and is to be deduced as an inference of fact from several facts and circumstances disclosed by the evidence, after their connection and relation to the matter in issue have been traced and their weight and force considered; and when such facts and circumstances, though undisputed, are ambiguous, and of such a character that reasonable men, unaffected by bias or prejudice, may disagree as to the inference or conclusion to be drawn from them, the case should be submitted to the jury; and it is only when proof is so clear and decisive, and the facts and circumstances are unambiguous, and there is no room for fair and honest difference of opinion, that the court may take the case from the jury or pronounce upon the question of negligence as a matter of law. Langhoff v. M. & P. du C. R. Co. 19 Wis. 496; Hill v. Fond du Lac, 56 Wis. 242; Valin v. M. & N. R. Co. 82 Wis. 6; Hart v. West Side R. Co. 86 Wis. 489. The case of Hulehan v. G. B., W. & St. P. R. Co. 68 Wis. 520, relied on by the plaintiff, is distinguishable from the present, in that in that case there was an express finding that the company was negligent “in allowing sticks or blocks of wood to remain along the track, which made it dangerous for brakemen to couple cars at the place of the injury,” and there was evidence to take the case to the jury and support their finding. The first and second findings, to the effect that the brakes on the cars were negligently out of repair and in an unsafe .condition for use, are rendered immaterial by the finding [133] that the efficient cause of the plaintiff’s injury was the ice on tbe outside of the track. Pease v. C. & N. W. R. Co. 61 Wis. 163. The plaintiff was not entitled to judgment on the special verdict, and the judgment of the circuit court must for this reason be reversed. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.