Jensen v. Wisconsin Central Railway Co.

The following opinion was filed December 6, 1910: MaRshall, J. The conclusion reached in this case renders a general treatment of the form of verdict adopted by the trial court, in respect to which a number of criticisms are made and errors suggested by counsel for appellant, sufficient to dispose of all such matters. Such general treatment is not only appropriate to the case, but may be helpful in administering the law as it exists with the legislative change effected by ch. 254, Laws of 1907. It is quite evident that notwithstanding the exposition of the features thereof in Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 119 N. W. 309, 120 N. W. 756; Boucher v. Wis. Cent. R. Co. 141 Wis. 160, 123 N. W. 913; and Zeratsky v. C., M. & St. P. R. Co. 141 Wis. 423, 123 N. W. 904, there is yet, and perhaps not without warrant because of the crudities of the legislation, considerable uncertainty in the minds of bench and bar as to correct practice in submitting a case of this sort to a jury. That is manifest here from the fact that the trial court submitted three questions covering such features, nearly in the words of the statute, explaining some of such words so as to convey an understandable meaning thereof, in harmony with settled legal principles, and in addition added other questions so as to make the verdict also respond to the general special verdict law, in harmony with the settled practice in respect thereto. — 332 — Eirst there was submitted a question in substantial lit■eral compliance with the supposed requirement that the jury in such a case shall be asked whether “the company, or any ■officer, agent, servant or employee, other than the person injured,' was guilty of negligence directly contributing to the injury ?” That was followed by questions covering the specific acts of negligence alleged, which were, in turn, followed by a question, substantially in literal compliance with the statute, as to “whether the person injured was guilty of any .negligence which directly contributed to the injury,” and again by a question, in like literal compliance, as to “whether ■the negligence of- the company or any of its officers, agents, servants or employees, other than the plaintiff, was slighter -or greater as a contributing cause of the injury than negligence of the plaintiff;” then, upon the theory that, possibly, the supposed legislative questions would not, though answered in plaintiff’s favor, find actionable negligence, for want of a finding on the subject of proximate cause, — a question, substantially in the usual form, was added on such subject. Thus a double verdict was obtained. In one respect it is substantially in literal compliance with the statute of .1907, .and in another in compliance with the general special verdict ■law. The learned trial court used that extreme care, and in .addition explained the word “negligence” as used in the questions to mean want of ordinary care, and the words “directly •contribute” to mean proximately contribute. On the whole, the questions covered the case, though no such double presentation is necessary and might be confusing. Moreover, with■out adequate explanation of the questions, it might lead to harmful error. It is quite plain that an inquiry in literal compliance with the first feature of the law of 1907 referred to, could not be answered by yes or no and inform the court with reasonable «certainty of a unanimous agreement upon either of the sev — 333 — eral ideas disjunctively joined contrary to the settled practice on tbe subject wbicb hardly admits of legislative interference. We must assume that such feature only requires the subject to which it refers to be covered by one or more appropriate questions, each involving a single issuable idea, according to circumstances, in accordance with the practice under the general special verdict law. The term “negligence,” instead of “want of ordinary care,” is used uniformly in the new statute. The learned trial court repeated it some nine times in the verdict. This court, in the cases cited, construed such term to mean “want of ordinary care.” That being the case, it were better to use the latter term in such a verdict and not depend upon using a supposed equivalent which is not such in fact without the aid of judicial construction. The learned trial court, in supposed necessary compliance with the new law, used the term “directly contribute” six times in the verdict, giving the same, by instructions and appropriate supplementary questions, as before indicated, the effect of “proximately contributing.” Here again it were better to have used, in the question, the term “proximately contributing,” in harmony with this court’s construction of the statute, instead of a supposed equivalent which is not without the aid of judicial construction. Without further discussing the subject, covered by the several criticisms of the verdict here, it is considered that the law of 1907 simply requires the alleged actionable want of ordinary care of the defendant, the alleged or claimed want of ordinary care, if any, of the plaintiff, the proximate relation to-the injury of such want of ordinary care, and in case of there being such want of care on both sides, whether that of the defendant was the greater, to be specially submitted to the jury. It does not, in effect, change the form of submission required under the general special verdict statute and the settled practice in relation thereto, except as to adding the new element. — 334 — Tbe issues should be submitted accordingly, so far as they are involved on tbe evidence, legal terms being used in tbe ■questions in connection with appropriate explanations in tbe charge, so that a finding will result, specially, on each of tbe detail facts in issue on tbe pleadings and in controversy on the evidence. Neither tbe subject of want of ordinary care of tbe defendant or of tbe plaintiff need be submitted, unless, on tbe whole evidence, there is room for reasonable differences of opinion in respect thereto. In case of want of ordinary care of both parties being in controversy, so findings may result, convicting both of such fault and that tbe fault of each was in proximate relation to tbe injury, a question should be submitted as to which was tbe greater, but it need not be, and better not be, submitted in tbe set phrase of whether tbe fault of tbe injured party “was greater or slighter as a contributing cause,” etc. Tbe statute should be administered in its spirit. That requires, only, in case of mutual fault, that tbe verdict shall determine whether the fault of the defendant was the greater. The better way, it seems, is to submit the simple question: If you find that mutual fault of the defendant and the plaintiff proximately caused the injury, was the fault of the defendant the greater ? The foregoing is in strict harmony with the decisions heretofore rendered respecting the law of 1907. It gives full effect thereto, as it has been construed, and will enable trial courts to readily apply it in all situations calling therefor. It leaves the practice- before the new enactment, with which the bench and bar are familiar, entirely undisturbed, except, whereas, formerly the trial court was not required to submit the cause for a special verdict -unless requested to do so by counsel for at least one of the parties, now the cause should be so submitted regardless of any request, and, added to the usual form for a verdict in such cases, where the situation requires it, should be a question as to whether contributing fault of the defendant was the greater. — 335 — As before indicated, it is considered that question 1 of the special verdict was sent to the jury, thinking that, possibly, it might be held necessary, and for certainty of properly covering the case, questions 2 to 5, inclusive, were asked, covering' in detail the alleged negligent conduct of defendant. The four questions, except the one numbered 2, having been answered in appellant’s favor, if there be no evidence to warrant a finding as to that one in respondent’s favor, the answer hy the jury^should have been changed from “Yes” to “No;” a like change made as to question 1, or the question stricken from the verdict as unnecessary, and question 7 likewise stricken from the verdict so as to have made all the findings harmonize with a negative finding to number 2, and judgment have been rendered on the corrected verdict in defendant’s favor. We have searched the record diligently for evidence that appellant did not exercise ordinary care in respect to locating the switch with reference to the cattle-guard. On the argument, counsel for respondent conceded there was none other than inferences from the physical situation, arguing that it was competent for the jury, in their discretion, to find from such inferences in favor of pláintiff, notwithstanding the undisputed evidence of experts that the switch and cattle-guard were located in accordance with the customary construction of roads, and particularly of appellant’s road. Counsel’s contention would render the arrangements of important industries, though designed by the best informed men on such matters, and according to the method adopted by the great mass ■of mankind in the same line of work, subject to condemnation by a jury of non-experts, solely upon their own judgment, as not consistent with ordinary care. No authority is pre- ■ sented in support of such claim and for the very good reason, we presume, that none exists. The proper standard of defendant’s duty was the care which the great mass of mankind ordinarily exercise under — 336 — tbe same or similar circumstances. Now and tben it appears tbat tbe customary way of doing things is utterly disregardful of personal safety, where it is said, tbe mere fact tbat tbe way adopted was the customary way, is not a defense against tbe claim of liability. They are very extreme cases, quite different from one where men of judgment and experience commonly for a long time have been accustomed to arrange premises and instrumentalities for an ordinary business enterprise like a railroad, in a particular way, found by experience to be reasonably safe and convenient. It seems tbat little more need be said. Tbe switch and cattle-guard were necessary appurtenances of defendant’s-business. It necessarily possessed such large measure of freedom in laying out its railroad yard and arranging tbe instru-mentalities in connection therewith, tbat pretty clear evidence would be required to warrant condemning it of being guilty of actionable negligence in tbe matter. With no evidence whatever in tbat respect, but, on tbe contrary, affirmative proof in abundance tbat it acted with all tbe care ordinarily exercised in such matters, there was no controversy on tbe question for solution by a jury. This court has often held, in terms or in effect, tbat if a person acts in tbe customary way and is not obviously careless as to tbe safety of persons or property of others, be cannot properly be convicted of having begn guilty of actionable negligence. Tbe logic is unanswerable, since tbe test of actionable negligence is absence of ordinary care, and ordinary care is tbe care exercised by tbe great mass of mankind, tbat a person whose conduct is in harmony with tbat of such great mass, under tbe same or similar circumstances, is not guilty of actionable wrong. With tbe exception noted, tbe rule is universal and has been often so recognized by this court. Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671; Innes v. Milwaukee, 96 Wis. 170, 174, 70 N. W. 1064; Prybilski v. Northwestern C. R. Co. 98 Wis. 413, 416, 74 N. W. 117; Dehsoy v. Mil — 337 — waukee E. R. & L. Co. 110 Wis. 412, 416, 85 N. W. 973; Boyce v. Wilbur L. Co. 119 Wis. 642, 646, 97 N. W. 563. In these and other authorities, the idea will be found distinctly condemned that a jury can be permitted to use, as a standard by which to test the conduct of the defendant, their conception of what should be considered due care, independently of ordinary care gauged by what is ordinarily done under the same or similar circumstances. , By the Gourt. — It follows that the judgment appealed from must be reversed, and the cause remanded for judgment dismissing the action with costs. The respondent moved that the mandate be modified so as to direct further proceedings in the court below according to law, and so as to grant leave to the plaintiff to move in the court below for a new trial and for such other or further relief as he might show himself entitled to on account of errors or irregularities in the conduct and trial of the ease. The motion was denied March 14, 1911.