Hennesey v. Chicago & Northwestern Railway Co.

Winslow, J. The defendant claims here, as it claimed below, that no case was made by the plaintiff, because (1) the evidence showed no negligence on its part; (2) the plaintiff’s intestate assumed the risk; and (3) because he was guilty of contributory negligence. [115] We are unable to say, as matter of law, that a verdict should have been directed upon either of these grounds* The evidence was entirely sufficient to take to the jury the-question whether leaving an open ditch in a railroad yard of the width and depth of the one in question, under and at the side of the track where switchmen would naturally walk, was not an act of negligence. The evidence was ample that such ditches did not exist in the yards of other companies, or even in the other Milwaukee yards of the same company. The question of assumption of risk is one of greater difficulty. The ditch had existed in the same condition for a long time, and the intestate was familiar with the yard. There was evidence that all or nearly all of the switch rods in the farm yard had openings or ditches under them of the same general character as the opening in question, for the purpose of giving free play to the switch rod; but there was also positive evidence by at least one witness acquainted with the yard that the openings under the other switch rods were much shallower than the one in question. And a number of witnesses who testified to the existence of similar openings at the other switches admitted that the other openings were simply intended to allow free play to the switch rod, while the opening in question constituted a part of a continuous ditch passing for a long distance transversely under several tracks for the purpose of draining the yard. The evidence also clearly showed that, in the two other yards of the company where the deceased spent the greater part of his time, there were no such ditches, but that all such drains were covered. If the accident to the plaintiff’s intestate was in fact caused by his stepping into the ditch and his foot becoming wedged in between the ties, as the condition of his foot and shoe when found may perhaps indicate, it is very evident that the depth of the ditch was one important and efficient element in working the mischief. A ditch two or [116] three inches deep would probably present no such possibility, or at least only in a comparatively slight degree. Had it been clear and undisputed that all the switches in the yard had similar deep ditches under them, it might with reason be claimed that a man who had worked for any considerable time in the yard would be held, as matter of law, to have assumed the risk. Paine v. Eastern P. Co. 91 Wis. 340. But there being evidence tending to show that the ditch in ■question was substantially different from the openings at the other switches, and the danger to be apprehended greater in degree as well as different in character, it cannot be said, as matter of law, that the intestate assumed the risk because he had not seen and appreciated the special danger at this ■one switch. Colf v. C., St. P., M. & O. P. Co. 87 Wis. 273; Paine v. Eastern P. Co., supra; Curtis v. C. & N. W. P. Co. 95 Wis. 460. Nor can it be held, as matter of law, that the deceased was guilty of contributory negligence because he attempted to uncouple the cars while they wore slowly moving. There was evidence that this method of uncoupling -was well-nigh 'universal in the yards of the company at Milwaukee, and that it had been practiced with the knowledge and tacit approval of the yardmaster for years; and no rule or regulation was shown to the contrary. So, under familiar principles, the question became one for the jury. Curtis v. C. & N. W. P. Co., supra. There were, however, two questions which the defendant requested should be incorporated in the special verdict, Which were denied, and which, we think, should have been submitted in some form. These questions were as follows: •(1) “ Ought a person of ordinary intelligence, with the experience of deceased, in the exercise of ordinary care, to have observed the condition of the roadbed, switch, and track at the place in question, prior to the day of his injury, -and to have known the danger to be apprehended there [117] from?” (2) “Was the death in question the result of an unaccountable accident ? ” The first of these interrogatories presents the question of' assumption of risk, which was one of the most vital questions in the case. It is true that it has been held by this- and other courts, and logically, we think, that assumption of the risk of unusual danger is a form of contributory negligence. Darcey v. Farmers' Dumber Co. 87 Wis. 245. It is-true, also, that the general- question of contributory negligence was submitted to the jury in question 8 of the special verdict. Now, had the jury been carefully instructed upon the question of assumption of risk, and plainly told that it was a species of contributory negligence, and that, if they found -that deceased did assume the risk of such unusual danger, then he was in law guilty of want of ordinary care,, and the question must be so answered, there would probably be no error in refusing to submit the specific question asked-for, because the issue would thus have been covered. But there were no such satisfactory and clear instructions on this point as to place the jury in position to appreciate that,in answering the question, they were also passing upon the-question of assumption of risk. While, as before said, assumption of unusual risk is a form of contributory negligence, it is a specific phase of such negligence, and is not-likely to be so considered by a jury without careful and specific instructions. If not so covered, it should in a case like the present be submitted in a separate question. The second question asked and refused was whether the injury was the result of a pure accident. This is a case where that question should have been submitted. No one saw the injury, and the circumstances in evidence may well lead to-different inferences in the minds of reasonable men. It may. well be that, if this question had been submitted with proper instructions, the jury would have answered it in the affirmative; and, had such been the answer, we are unable to see:. [118] -how the verdict could be disturbed. Kucera v. Merrill Lumber Co. 91 Wis. 637. There were also errors in the charge which should be corrected upon a new trial. The jury were told that proximate ■cause means “the direct and immediate cause.” This subject has been so frequently and recently reviewed by this ■court that it is unnecessary to go over it again. The true rule will be found stated in numerous recent cases. The ■definition of ordinary care as “ such care as the ordinary person uses in the transaction of the ordinary affairs of life ” is •certainly inaccurate, if not positively erroneous. Duthie v. Washburn, 87 Wis. 231. Other errors are assigned, but we do not deem it necessary to discuss them. By the Gowrt.— Judgment reversed, and action remanded for a new trial.