Schendel v. Chicago & Northwestern Railway Co. , 147 Wis. 441 ( 1911 )

Tbe following opinion was filed December 18, 1911:

Maeshaul, J.

(dissenting). I regret that I am compelled to dissent from tbe conclusion reached in this case. Doubtless in one period of our judicial history, — an intermediate one, I think, between tbe original establishment and vindication of tbe Code designed to create a new, more economical, speedy, and certain attainment of justice than formerly ; one that should deal with substantials only, giving no heed to technicalities, and tbe revival thereof which has been so significant, — the refinement of logic by which fatal error has been found in' tbe record, would, have tbe east of undoubted legitimacy. But tested by tbe policy so often de-dared and so often vindicated, wbicb was intended to be-firmly entrenched in our system by sec. 2829, Stats. (1898),. and which the legislature in recent years helpfully assisted the court from a supposed irregular observance thereof, it. seems there is danger of the present case being regarded as a lapse from the high standard of revived appreciation of the-necessity for and real beneficence of adhering strictly to the policy that only errors shall be regarded efficient which are-so significant as, within reasonable probability, to have prejudiced the losing party, in that had they not occurred a more-favorable result to him, within such probability, would have been reached.

I must, in passing, personally acquit my associates from any purpose of a reactionary nature. They regard the error, so called, which dominated the result, as substantial; not so-much, as I understand it, because had it not occurred, the result would, within reasonable probabilities, have been different, but because the written law requires the jury, in such a case, to directly and specifically pass upon the question of' comparative negligence,- — -that, therefore, such must be done where there is room in the evidence for conflicting reasonable-inferences in respect to the matter.

Now I think my brethren have given altogether too much force to the legislative enactment, in terms requiring the question of comparative negligence to .be submitted to the jury. The conclusion was early easily reached that the legislature-did not intend that should be submitted where the evidence- and reasonable inferences from conceded or found facts are-so clearly one way as to leave no reasonably disputed question for the jury to deal with. Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 119 N. W. 309, 120 N. W. 756; Zeratsky v. C., M. & St. P. R. Co. 141 Wis. 423, 123 N. W. 904. That was stepping aside from the literal meaning of words, butsuch meaning would have required the legislative effort on the subject to be condemned as an unconstitutional invasion of judicial authority. By tbe same helpful judicial method we should reject auy meaning which is contrary to the whole scheme voiced so significantly in sec. 2829 and emphasized by the legislature, even since the passage of the comparative negligence law and regarded now as a crowning merit of the Code.

The legislature did not mean, absolutely, that the question of comparative fault should be answered by the jury. It meant that it should be answered, if necessary, in harmony with the whole scheme of the Code. The statute is largely one of practice which, notwithstanding the mandatory form, is only so as regards those matters which are within the jury’s province and as to substantials. Otherwise it is a mere practice provision which, at the best, is more advisory than mandatory and, in any event, is largely within the control of courts as indicated by the analysis of the law in Jensen v. Wis. Cent. R. Co. 145 Wis. 326, 128 N. W. 982. The court is never bound absolutely by any practice act, though, of course, with that respect which is due to legislative wisdom it conforms to its notions even in that field, unless manifestly unreasonable.

Now in harmony with what was said for the court in Jensen v. Wis. Gent. R. Co., supra, the comparative negligence law should be administered in its spirit, rather than in its letter, otherwise what was intended to be a beneficial change in our system might prove to be the very reverse. The law should be regarded as requiring certain subject matters of fact to be submitted to a jury for determination, where there are conflicts of such significance as to require it according to established!practice; errors in that regard which are inconsequential to be disregarded. One of such subjects is the alleged wrongful conduct of the plaintiff and its proximate relation to the injury; another the alleged contributory fault of the plaintiff, if any; a third, in case of there being any such fault, its proximate relation to the injury; and a fourth, in case of there being mutual proximate fault, whether that of the defendant was tRe greater. Here all of such subjects were suRmitted. TRe jury, in effect, found tRat tRe fault ■of tRe defendant proximately causing tRe injury was tRe sole proximate cause tRereof, and, necessarily, greater tRan any ■sucR fault on tRe part of plaintiff, because tRere was no sucR fault.

I must Re excused for saying tRat I am unable to appreciate tRe refinement of logic by wRicR it is said tRe jury made no comparison of conducts merely because they did not formally answer tRe set phrasing submitted to tbem on tRe subject. True, in tRe technical sense, they did not compare tRe proximate fault of tRe one with sucR fault of tRe other; but I respectfully protest that the record should not be tested in ■a technical way. When the jury found that the defendant was guilty of such significant proximate fault as to rise to the dignity of fatal failure to exercise ordinary care, and that the plaintiff was not guilty of any such significant fault, they, necessarily, to all intents and purposes, compared the •conduct of the two, each with the other.

But, conceding for the case, that the jury erred on the evidence in not finding that plaintiff was guilty of some proximate fault, I feel satisfied the proof in that regard is not so persuasive but that, Rad the finding of no such fault been approved by the trial court, this court, under the judicial policy to sustain a jury’s finding thus approved, would not disturb it as manifestly wrong; while, Rad the jury acquitted •defendant of such fault and it Rad been so approved, it would Re most emphatically disapproved here. In other words, the •evidence of proximate fault on the part of defendant was so ■significant that the trial court would probably not Rave gone far astray, if at all, Rad it taken the question from the jury.

TRe foregoing leads to several conclusions each of which would require an affirmance here. First TRe error of the jury, if error there were, in not convicting plaintiff of some •contributory fault, and following that by making a comparison between such fault and that of the defendant, is inconsequential, since, had it not occurred, the same result, in all reasonable probability, would have occurred. Second. From the fact that the trial court changed the answer of the jury and yet rendered judgment ftir plaintiff; leaving the subject of contributory fault not specifically passed upon by the jury, it is manifest the judicial thought was that, strictly speaking, plaintiff, as matter of law, was guilty of some slight contributory fault, but the judgment of the jury, that if such were the case such fault did not rank with that of defendant, should not be disturbed. Third. The fact that the judgment was rendered as it was — if we can avoid saying the trial court studiously avoided disturbing what he considered as a substantial finding that the proximate fault of the defendant was greater than any such on the part of plaintiff, — emphatically informs us that the judge found, as matter of law, independently of the jury, that the proximate fault of defendant was greater than any such of plaintiff, which finding should not be set aside unless manifestly wrong. This last dominating and invaluable principle in our jurisprudence seems for the time to have been overlooked.

Lastly and independently of any finding or determination by the trial court, it seems that, as matter of law, the proximate fault of appellant, if there were mutual faults, was the greater.

The foregoing leaves still another matter, by no means free from difficulty, which I will suggest without discussing.

It is very doubtful whether the jury were not justified, from a view of the evidence they had a right to take, in acquitting respondent altogether, and the trial court erred in changing the finding in that respect.

Let it be considered that, technically, plaintiff should have remained out on the track. In view of the condition of the weather and his lantern, it would not within reasonable probabilities have done any good. Considering such matter and tbe fact tbat be placed ample signals to attract tbe attention •of tbe engineer, if tbe latter paid any attention to his duty, it seems tbe jury might well have come to tbe conclusion tbat a return to tbe caboose to put bis lantern into commission as speedily as possible, was rather commendable than reprehensible, notwithstanding tbe rules of the.company which provided for staying out on tbe track but made no provision for tbe particular emergency. True, if he bad remained out be would not have been in tbe caboose and so would not have been injured there, or at all, bad be been fortunate enough to keep clear of tbe train which was being run regardless of tbe station signal, in effect commanding a stop, regardless of whether weather conditions were such as to enable tbe engineer to see it if be went flying by; and regardless of tbe double signal which bad been set on tbe track according to tbe rules to attract bis attention; but tbat would not relieve appellant from liability. It would'take considerable space to analyze tbe evidence and show tbat it justifies all the suggestions here made, but I forego tbe labor, contenting myself with saying tbat in my judgment all such suggestions are fully warranted.