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Andrews vs. Chicago, Milwaukee & St. Paul R. Co.

iff's injury is whether the negligence of its foreman was the proximate cause of the accident. “The negligence is not tbe proximate cause of the accident unless, under all tbe circumstances, the accident might have been reasonably foreseen by a man of ordinary intelligence and prudence. It is not enough to prove that the accident was the natural consequence of the negligence. It must also bave been the probable consequence." Block v. Milwaukee St. R. Co. 89 Wis. 378. This subject underwent a careful consideration in Atkinson v. Goodrich Transp. Co. 60 Wis. 141, 150–155. It was there held after careful consideration, adopting the rule laid down in the supreme court of the United States in Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, as the rational and better rule, “that generally, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” 60 Wis. 161. This rule is supported by a great number of English and American cases there cited, and had been announced by this court as early as the case of Kellogg v. C. & N. W. R. Co. 26 Wis. 281. In Sharp v. Powell, L. R. 7 C. P. 253, it is declared that: “No doubt, one who commits a wrongful act is responsible for the ordinary consequences which are likely to result therefrom; but, generally speaking, he is not liable for damage which is not a natural or ordinary consequence of such an act, unless it be shown that he knows, or has reasonable means of knowing, that consequences not usually resulting from the act are, by reason of some existing cause, likely to intervene, so as to occasion damage to a third person. Where there is no reason to expect it, and no knowledge in the person doing the wrongful act that such a state of things exists as to render the damage probable, if injury does result to a third person it is generally considered that

Andrews vs. Chicago, Milwaukee & St. Paul R. Co.

the wrongful act is not the proximate cause of the injury, so as to render the wrongdoer liable to an action.” In Atkinson v. Goodrich Transp. Co., supra, the court closed the discussion of the question by saying: “We think that the decided weight of authority is in favor of the rule that in an action for negligence the defendant has the right to have the question submitted to the jury whether the result which is the ground of the action might, under all the circumstances, have been reasonably expected, not by the defendant, but by a man of ordinary prudence; and we think it very clear that no such question was submitted to the jury, either by the special verdict or by the instructions, given. It would seem that it is not enough to prove that the result is the natural consequence of the negligence, although that fact would be evidence tending to show that it might have been reasonably expected." These remarks are strictly applicable to the present case, and show that the fifth question the defendant asked to have submitted to the jury was improperly refused. It is true that this question may be open to criticism, in using the words “ would result," instead of “would be likely to result,” etc., but the questions held to have been improperly refused in the Atkinson Case were subject to the same criticism. 60 Wis. 150. It is certain that the question was sufficient to call the attention of the trial court to the necessity, at least, of giving proper instructions on the subject of what would constitute proximate cause, but none were given.

Much stress was placed in the argument, by the plaintiff's counsel, upon the fact that the verdict finds that the plaintiff's injury was “the direct consequence of the negligence of Roach, the foreman.” But this signifies, in our judgment, no more than that it was the natural consequence, and that there were no intermediate steps or links in the line of natural causation. While it may be evidence tending to show that the result was one which, in the light of attending circum

Andrews vs. Chicago, Milwaukee & St. Paul R. Co.

stances, ought to have been reasonably foreseen as likely to occur in consequence of his negligence, it is by no means equivalent to a finding of that fact, indispensable, as we have seen, to show that his negligence, in a legal as well as in a natural sense, was the proximate cause of the plaintiff's injury. It is not equivalent to a finding that the injury was the probable as well as the natural result of the negligent act, or that it was an injury which, in the light of the attending circumstances, the foreman ought to have reasonably foreseen as likely to occur from the negligent act. To say, therefore, that the injury was the direct result of the negligence, is really no more than saying that it occurred in the natural line or chain of direct causation. The question of the sufficiency of this verdict has been settled by repeated adjudications, many of which have been already cited, and to which the following may be added: Barton v. Pepin Co. Agr. Soc. 83 Wis. 23; McGowan v. C. & N. W. R. Co. 91 Wis. 147; Klatt v. N. C. Foster L. Co. 92 Wis. 624; Huber v. La Crosse City R. Co. 92 Wis. 636; Sheridan v. Bigelow, 93 Wis. 426.

There need be no embarrassment or difficulty in conforming to the rule. The question whether the negligent act relied on was the proximate cause of the injury may be submitted by a question in substance in that form, and the court should instruct the jury as to what will constitute proximate cause, in view of the facts and circumstances, or it may be submitted to the jury to find the facts which show that within the rule, as stated, the negligence in question was, in a legal as well as a natural sense, the proximate cause of the injury, and was therefore actionable. Within these decisions, from which we are not at liberty to depart, it is plain that this verdict is fatally defective.

2. The evidence of six of the defendant's witnesses was such as to properly require the defendant's seventh question to be submitted to the jury. It related to matter within the

Andrews vs. Chicago, Milwaukee & St. Paul R. Co.

issue, not covered by any finding in the special verdict, namely, to the uniform custom of helpers in that yard, “who have gone between cars, to come out again immediately, if they failed to make the coupling the first time, and look for coming cars.” It related entirely to the custom and duty of helpers, and had a material bearing upon the question whether the plaintiff, in the course he pursued in remaining between the cars, endeavoring a second time to couple them, on turning the link, when they were coming together again, was guilty of negligence which materially contributed to his injury. The effect of its rejection was to withdraw all evidence on the point of custom thus alleged from the consideration of the jury, and it doubtless prejudiced the defendant's case generally upon the subject of the custom that actually prevailed. There was testimony tending to show that an attempt to turn the link and make a coupling in the manner and under the circumstances stated, after having failed to make the coupling in the first instance, was a dangerous proceeding. Besides, the question proposed was material, as to whether the foreman, Roach, conceding that he was negligent in violating the custom as to his pwn duty, ought reasonably to have foreseen, in the light of the duty of the helpers and of the attending circumstances, that some injury would probably occur in consequence, to the plaintiff, from sending down, in the manner he did, another car after the refrigerator car. We think that the defendant was entitled to an answer to this question, and that it was error to refuse to submit it.

3. There is nothing in ch. 220, Laws of 1893, wbich to our minds indicates that it was intended to exclude from a case within its provisions all question as to the assumption of the risks or perils naturally and usually incident to the plaintiff's employment as a railway operative. It was not the design of the act to make the railroad company an insurer against injuries thus received by the plaintiff. There is no

Andrews vs. Chicago, Milwaukee & St. Paul R. Co.

question in the case as to the assumption by the plaintiff of any unusual or extraordinary risk.

4. The contention that under ch. 220, Laws of 1893, contributory negligence on the part of the plaintiff was required to be pleaded as a defense, is not maintainable. The defense of contributory negligence arises out of the facts and circumstances of the alleged injury. Before the statute, it was not necessary that it should be pleaded. Cunningham v. Lyness, 22 Wis. 243; McQuade v. C. & N.W. R. Co. 68 Wis. 616. It was not within the plan or purpose of the statute to make any change in the law of pleading. The statute relates only to questions of liability. The case of Dugan v. C., St. P., M. &0. R. Co. 85 Wis. 610, relates only to the burden of proof. The defense of contributory negligence would be sustained to an action under this statute, had it been silent on the subject. The mere fact that the words “ without contributory. negligence on bis part” are in the act, when the courts would have supplied them if omitted, cannot operate either to change the rule of pleading or evidence. Dugan v. C., St. P., M, & 0. R. Co., supra.

5. Nine pages of the printed case are directed to paragraphs in the arguments of the plaintiff's counsel to the jury, to objections to the same as improper, and rulings thereon. Of thirteen paragraphs objected to, in five instances the objection was sustained, and in still others there ought to have been a similar ruling. The general tendency of the objectionable remarks was to improperly prejudice and bias the minds of the jury, and stir up passion and resentment against the defendant; but, as there is to be a new trial, we have not thought proper to extend this opinion by a special statement of these matters. Counsel, in their vocation as such, are officers of the court, charged with important functions in the administration of justice. Theirs is a high and important trust, and in their zeal there are times when they are liable to become unmindful of the duty they owe to the

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