Wolosek v. Chicago & Milwaukee Electric Railroad

SiebecKee, J. The circuit court held that the civil court erred in its instruction on the subject of proximate cause. The plaintiff admits that the instruction wholly omitted to [478] inform the jury that proximate causation in negligence cases-necessarily includes the element of reasonable anticipation, namely, that an alleged negligent act cannot be held to be the-proximate cause o'f an injury in the legal sense unless the-person responsible for the negligent act, in the light of the attending circumstances, ought in the exercise of reasonable care to have foreseen that personal injury might result therefrom to another. The repeated decisions of this court have-emphasized the necessity of informing the jury on this subject, and reference to the following with the cases therein referred to is deemed sufficient: Deisenrieter v. Kraus-Merkel M. Co. 97 Wis. 279, 72 N. W. 735; Fehrman v. Pine River, 118 Wis. 150, 95 N. W. 105; Morey v. Lake Superior T. & T. Co. 125 Wis. 148, 103 N. W. 271; Sparks v. Wis. Cent. R. Co. 139 Wis. 108, 120 N. W. 858. The pleadings raised the issue of plaintiff’s contributory-negligence and the evidence on the subject is in sharp conflict. The special verdict does not contain a question covering the issue thus presented for determination. ' The verdict, submitted embraces these inquiries: (5) Could the plaintiff,, in the exercise of ordinary care, have seen the light from the-car in time to have avoided the collision? and (6) Could the-plaintiff, in the exercise of ordinary care, have heard the car-approaching in time to have avoided the collision ? The jury answered both of these inquiries in the negative. These answers decide no issues in the case bearing on the legal rights-of the parties. They give no information on the question whether or not the plaintiff Avas guilty of contributory negligence under the circumstances shown. The verdict Avholly omits any finding on this question. It is manifest that the-trial court, under the issues raised and the conflicting evidence in the case on the subject of plaintiff’s contributory negligence, erred in not submitting a specific question to the-jury as to whether or not the plaintiff was guilty of sany want of ordinary care which proximately contributed to cause the [479] injuries complained of. He evidently was of the opinion .that questions 5 and 6 covered this branch of the case. This resulted in a mistrial, which cannot be corrected on the rec•ord. Under this condition of the record the circuit court-properly held that manifest prejudicial error was committed .in the trial of the case in the civil court. It is however strenuously contended by the defendants that the circuit court improperly awarded a new trial for the reason that it appeared upon the evidence adduced that the plaintiff was guilty of contributory negligence as matter of law and that the rights of the parties could have been observed and protected and substantial justice have been done ■on this state of the record by awarding a judgment of dismis■sal of the plaintiff’s complaint. This contention is based on the claim that the plaintiff’s evidence to the effect that he ■stopped, looked, and listened for an approaching car when he was within about twenty feet of the railroad track at the •crossing is so overwhelmingly impeached as to be wholly un->creditable, by the evidence of the four women who testified that they were on the way to the crossing to take this car and within sight and hearing of its approach, the one witness who was riding in the car, and the motonnan and conductor, who each testified that the lights were lighted when the car was approaching the crossing, and upon the additional claim that the plaintiff had an unobstructed view of it, after it had emerged from the cut, for a distance of from 700' to 900 feet south of the crossing. The plaintiff testifies positively that he stopped, that he looked and listened, and that he neither saw the light of an approaching car nor heard a Avliistle or sound signaling its approach. The surrounding circumstances enabled him to see the lights on the approaching car if he looked as he testified, and tend to show that he could have heard the whistle signaling its approach. This raised ,-a sharp conflict in the evidence on this point. The trial court was of the view that it presented an issue which ought to be [480] determined by tbe jury and tbe jury must have believed the-plaintiff on tbis point, and tbe circuit court in granting a new trial affirmed tbis conclusion of tbe trial court. We are-mot convinced that tbe trial court was clearly wrong in submitting tbis issue to tbe jury and therefore affirm tbe circuit court in granting a new trial. Tbis disposes of all tbe questions that need to be considered upon tbis appeal. By the Court. — Tbe order appealed from is affirmed.