Vaillant v. Chicago & Northwestern Railway Co.

SiebecxeR, J. Tbe argument is made tbat tbe boy’s death was “occasioned, ... in whole or in part, by tbe want of such fence.” Sec. 1810, Stats. 1915. Tbe meaning of tbe word “occasioned” as used in this statute has been adverted to in tbe opinions of this court and is declared to signify tbat which is caused incidentally or indirectly. Curry v. C. & N. W. R. Co. 43 Wis. 665; Schwind v. C., M. & St. P. R. Co. 140 Wis. 1, 121 N. W. 639. In this sense of tbe statute can it be reasonably asserted tbat tbe omission of tbe fence under tbe alleged facts was tbe means of producing tbe boy’s death? Did it incidentally cause bis death, or are we compelled to say tbat bis death is attributable to other elements of tbe transaction ? Tbe claim tbat tbe presence of a legal fence on tbe right of way would have intercepted tbe boy in tbe progress of bis course and have prevented him from catching the moving train and thus be would have avoided tbe injury, is based on inferences highly speculative, uncertain, and purely conjectural. It cannot be said, in the light of common experience, tbat such a fence would have intercepted or diverted tbe boy in bis undertaking to reach tbe moving train. We know tbat such a fence is hardly an im 550 pediment in the course of a normal boy sixteen years of age in attempting to catch a moving train. It is a mere surmise to assert that its presence would have diverted him from pur- , suing his perilous expedition, or that it would have prevented him from catching the moving train. The conditions and events of the whole affair afford no reasonably certain basis for an inference that the absence of the required railroad fence was an incidental cause or means of producing the boy’s death. It is furthermore to be observed that the injury causing the boy’s death was inflicted at De Pere, about five miles distant from the place where he got on the train, when he attempted to jump off from the moving car. It is obvious that he had successfully carried out the first steps of his undertaking. As the trial court declared: “He sought to steal a ride on a freight train to the neighboring city, several miles away. He accomplished his purpose, and was not injured because of the fact that he tried to board the train, . . . but because of the fact that later he sought to jump off from the moving train several miles further on.” His reckless conduct in jumping off from the moving car was the real peril that “occasioned” his injury. This act is disconnected and separated from the absence of the fence and in the natural course of things constitutes an independent event as related to the resulting injury. The evident answer to the inquiry, What occasioned the boy’s death ? is that it was the natural consequence of his voluntary act of jumping off from the moving train. This act was wholly unrelated to the company’s omission to have a railroad fence. The two events had no causal relation, and the latter cannot be considered as causing the death in any incidental or indirect manner. Without pursuing the inquiry further, in the light of the facts alleged in the complaint it cannot be held that the boy’s death was “occasioned in any manner, in whole or in part, by the want of such fence.” Plaintiff cites to our attention Schwind v. C., M. & St. P. R. Co. 140 Wis. 1, 121 N. W. 639; Alexander 551 v. M., St. P. & S. S. M. R. Co. 156 Wis. 477, 146 N. W. 510; Ulicke v. C. & N. W. R. Co. 152 Wis. 236, 139 N. W. 189; and Bejma v. Chicago & M. E. R. Co. 160 Wis. 527, 149 N. W. 588, 152 N. W. 180, and relies upon them as authorities to sustain the defendant’s liability upon the complaint. An examination of them has convinced us that these cases are clearly distinguishable from the instant one and that the rules governing those cases do not apply here. By the Court. — The order appealed from is affirmed.