Seaver v. Town of Union

MaRshall, J. Many questions, by proper exceptions to rulings of the court, were preserved for consideration, and were brought to our attention by proper assignments of error and fully discussed by counsel both in the oral and the printed arguments, which in our view of the case are immaterial; therefore, in the statement which we have compiled from the record we have omitted all parts of the history of the litigation not essential to an understanding of the single question upon which the appeal turns. ■ We shall not discuss the subject of whether the verdict is sustained by the evidence as to the highway being insufficient. It may be assumed, for the purposes of the. appeal, that the verdict in that respect is amply justified. Neither shall we discuss any of the numerous assignments of error as to rul — 329 — ings on requests for special findings by the jury other than those embodied in the verdict, or on requests for special instructions not given, or any of the criticisms of the instructions which the court gave, or any of the exceptions found in the record to rulings on evidence. The result of our study of the case is that, without prejudice to the rights of appellant, all of the assignments of error presented and discussed may be left out of consideration, except those presenting the question of whether the evidence conclusively shows that the accident was caused wholly or partly by want of ordinary care on the part of respondent. If that must be resolved in favor of appellant, the motion made in its behalf, at the close of the evidence, for the direction of a verdict, should have been granted; and' the motion made after verdict, to change the answers to questions 12 and 14, and to render a judgment in appellant’s favor on the verdict as corrected, should have been granted. After giving the verdict of the jury and the decision of the court due consideration, it seems that the vital question above suggested must be decided in favor of appellant. It is conceded that all the conditiitos which made the highway unsafe were open to the most casual observation and were fully known to respondent. The evidence shows such to have been the fact beyond reasonable controversy. The nature of respondent’s load was such that he must have known that he could not draw it out of the cut and up the slope, which rose some thirteen inches in a distance about the width of his sled, to the plain above, without great danger of the load being overturned. He must have known that if he met a team in the cut he might have to attempt that feat, or the person coming from the south would have to encounter a like danger, in order that the two might pass each other. He was traveling on one of the main highways of the town, one.upon which there was considerable travel to his knowledge, by teams with loaded sleds or wagons, and must have — 330 — known that one was likely to be approaching from tbe south' at any time. Under such circumstances he passed by a I>lace where he had a good opportunity to turn to his right, and the last such place, without looking to see whether a team was coming from the south. He did not take any such observation till he had proceeded past the last place where he could have turned out safely to his left, and the team coming from the south had passed the last place where it could have safely turned out of the track either way. Dim-ing all this time the team coming from the south was in plain sight. Plaintiff did not see it because he did not pay any attention to the matter’, and was proceeding entirely unmindful of the danger without any circumstance to excuse his neglect. That such conduct is contributory fault, this court has often decided. Collins v. Janesville, 111 Wis. 348; Devine v. Fond du Lac, 113 Wis. 61. The first step iff the chain of circumstances leading up to the injury was plaintiff’s heedlessness in going into what, under the circumstances, was an obviously dangerous place. Being in there, he took the chances of trying to extricate himself by hauling his top-heavy load*up the slope at the side of the traveled track to the plain above. His attempt to accomplish that feat was an event set in motion, as it were, by his going heedlessly into' the place of danger. After he had reached the top of the bank and the team from the south had passed by, he was moved, by his course up to that time, to take the chances of trying to return to the traveled track by driving down the slope, which he did, where the descent was sixteen inches, and where, because of the steepness thereof, his sled was very liable to slide rapidly toward the track as soon as it passed sufficiently over the brink to throw the center of gravity of his load that way, and liable to come to a sudden stop as the left runner struck the track, which would strongly tend to' so throw the weight of his load to the left as to cause it to overturn. As a man of ordinary intel331 ligenee, all that must have "been perfectly plain to- plaintiff if he gave the attention to his surroundings and movements which, as a person of ordinary care, he ought to have given. The act of returning to the highway was a natural and probable result of going out of the same. It completed the chain or succession of events reaching from the first act of negligence mentioned to the unfortunate event, for which respondent seeks compensation of defendant. The legal result is plain. It is not often that a case is presented which so perfectly illustrates the doctrine of proximate cause in the law of negligence, the importance of it and its applicability to an action to recover compensation for an injury alleged to have been caused by the insufficiency of a highway, the same as to every action grounded on negligence of the defendant. The immediate cause of plaintiff’s injury was the condition of the highway in that it was in a narrow cut at the place where-the injury occurred, but the proximate cause thereof was the negligence of respondent in going into the cut as he did and paying no attention to whether a team was already in there, approaching from the south, till he had passed by the last place where he could have safely turned out. That first act of negligence set all the other events in motion, each being started by the one which preceded it,, down to the instant of the injury. They were all linked together in close causal connection, and with all the essentials of legal responsibility, so that, conceding that the highway was insufficient, as found, the negligence of respondent intervened and gave the impulse which did not spend itself till his injury occurred, and which, in a legal sense, at least, was the responsible cause thereof, or, in any view that can be taken of the matter, contributed to cause it. It does not seem that anything need be or can be profitably added by further discussing this case. The principles of law involved are all so firmly settled as not to be open to ques — 332 — tion. They have been so often discussed that an opinion should not, it seems, be incumbered by citing authorities in respect thereto'. There is no serious conflict, if any, in the matters from which the inferences spring as to respondent’s want of care and its causal connection with the injury here received. On the theory that must prevail, in view of the peculiar character of respondent’s load — assuming that the highway was as dangerous as the jury found it to' be, and that ordinary care required respondent not to thoughtlessly drive into the place, where he knew or must have known he could not safely pass a team coming from the south, without first looking in that direction to observe whether there was one coming when he yet had an opportunity to safely turn out, — all of the findings of fact of the jury, on the subject of whether he was negligent or not, and whether fault on his part contributed to or caused his injury, are against him, except the mere conclusions, which, from the manner in which the verdict is framed, were reached only by reasoning from such favorable findings. The finding as to whether, the insufficiency of the highway was "the proximate cause of the accident, and the one covering the subject of plaintiff’s contributory negligence, are plainly out of harmony with the facts on which they are based. After the jury reached the conclusion that respondent had ample opportunity to see the team approaching from the south, and to avoid meeting it in that part of the cut where neither team could be turned out sufficiently to allow the other to safely pass by, in view of the undisputed evidence that he was perfectly familiar with the road and had a load of a character which rendered any attempt to haul it on a very sidling place especially hazardous, and that he nevertheless passed by the last place where he could safely have turned out, without seeing the team approaching or making any effort to discover if such was the situation, it would seem that it required but an appeal to common knowledge to reach a con333 elusion contrary to the answers given by the jury to questions 12 and 14. Those answers and the other findings and undisputed evidence are so inconsistent with each other, that we must conclude that the jury misunderstood the instructions given hy the trial court in regard to the legal essentials of the cause of the accident in order to fix legal responsibility therefor upon the defendant. This case is of a character where there is great danger of a jury not understanding and properly applying the law unless it is explained to them with considerable care. It seems that the mere use of legal terms, which are plain to one trained in the law, does not always convey the correct idea to a jury of the essentials of proximate cause. Nevertheless, of course, if a trial judge contents himself with a mere statement of the principles of the subject in the language of the law, his duty is so far performed that no prejudicial error can be assigned for want of a more definite explanation thereof. Had the jury understood that it was necessary for them, in determining what was the efficient or real producing cause of the accident and whether respondent was guilty of contributory negligence, to go back from the instant of the injury, step by step, in the chain of causal connection, to the first act which was at the foundation of the mischief, the one which started the chain of events in motion, and name it the proximate cause thereof, understanding that it was essential to rich first act being so named for each event in the chain in regular succession to be a natural and probable result of the one that prei-ceded it, and one which a person of ordinary care might reasonably have expected, resulting in an injury to person or property, they would in all reasonable probability have reached the conduct of respondent in negligently going into the place of danger before stopping in their search, and would not have retraced, their steps. As it was, they either stopped at or started with the immediate cause of respond — 334 — ent’s turning out of the highway, the insufficient condition thereof at that point for two teams to pass each other. They did not consider the cause which placed respondent in that predicament. In their process of reasoning they clearly either started from the wrong end of the chain, or at a link therein, a course which is liable to lead to error.- A safer way is to set the mental compass at the injury complained of and look backward. We will illustrate what was last said. A person was injured by his horse or carriage coming in contact with an insufficient condition of a highway while the horse was in a condition of fright and was uncontrollable by the exercise of ordinary care on the part of the driver. The immediate cause of the accident was the insufficiency of the highway, but that, we can readily see at once, was not the proximate cause thereof because of the fright of the horse. That, though not, perhaps, the nearest cause, was a near cause. But we must discover what started the horse to run away, since we cannot see that any failure of the driver to regain control of it intervened to break the causal connection between the cause of the fright and the final result. Proceeding backward on our course we find an object in the highway, liable to frighten a horse of ordinary gentleness so that its driver would lose control of it, without negligence on his part, and that such object caused the condition of fright and uncontrollability in the case in question. We cannot stop yet, however, and call the insufficiency of the highway caused by such object the proximate cause of the accident. Looking further, we find that the object which caused the fright was placed in the highway by the action of the elements. So if we were to stop with the mere defective condition of the highway we would be at a mere link in our chain, and if we were to stop at the cause which made the highway defective by placing the object therein we would not reach any responsible cause, especially since the fright — 335 — of tbe borse rendered tbe driver incapable of doing anything, reasonably, by ordinary care, to avoid tbe danger at tbe farther end of tbe chain. Looking further, we find that tbe condition of tbe highway caused by tbe object which frightened tbe borse bad existed for so long a time that tbe officers of tbe town knew of it, or ought to have known of it, for a sufficient length of time to enable them, by tbe exercise of reasonable diligence, to have removed tbe danger; that they ought to have done so, and that tbe town is responsible for their negligence. Now we have found tbe two ends of a complete chain of responsible causation, one end thereof being tbe negligence of tbe town, and tbe other tied to tbe unfortunate event, tbe injury to the driver of tbe horse. We have tbe complete succession of events from tbe negligence of tbe town to tbe injury. We have every element of responsible causation. An object in tbe highway, rendering it insufficient because of tbe negligence of tbe town, tbe fright of a borse of ordinary gentleness and its becoming uncontrollable by reason of such object notwithstanding ordinary care on tbe part of its driver, a resulting injury before, by tbe exercise of ordinary care, be could regain control of the borse, an injury to person or property in tbe lawful use of tbe highway by a traveler thereon, as a natural and probable result thereof, and tbe defective highway was a circumstance which any person of ordinary intelligence ought reasonably to have apprehended might probably cause an injury to tbe person or property of a traveler thereon, tbe last element springing as a matter of law from tbe insufficient condition of tbe highway, whether it is a test thereof or not. Draper v. Ironton, 42 Wis. 696; Peake v. Superior, 106 Wis. 403; Rhyner v. Menasha, 107 Wis. 201; Mauch v. Hartford, 112 Wis. 40. It is easy, it seems, to apply that illustration to this case. It follows closely numerous cases that may be found in tbe books, and covers the principles of proximate cause in tbe law of negligence as they have — 336 — been repeatedly laid down. Houfe v. Fulton, 29 Wis. 306; Jackson v. Bellevieu, 30 Wis. 250; Andrews v. C., M. & St. P. R. Co. 96 Wis. 348; Deisenrieter v. Kraus-Merkel M. Co. 97 Wis. 279; McFarlane v. Sullivan, 99 Wis. 361. By the Court. — Tbe judgment is reversed and tbe cause remanded with directions to change tbe answer to question-12 of tbe special verdict from yes to no, and tbe answer to question 14 from no to yes, and to render judgment upon tbe verdict as so corrected in favor of tbe defendant, dismissing tbe case with costs.