Chicago & North-Western Railway Co. v. Goss , 17 Wis. 428 ( 1863 )

By the Court,

DixON, C. J.

The learned judge, in his instructions to the jury, seems to have overlooked the different degrees of negligence, as slight, ordinary and gross, in considering what negligence on the part of the plaintiff below would preclude a recovery. He restricted the jury altogether to the consideration of the question, whether the plaintiff’s negligence was proximate or remote, in the sense of its having occurred or of his being present, at the time of the alleged injury, leaving the degree wholly out of the case. In this we think he was in error, and not justified by the authority to which he referred. Stucke vs. Mil. & Miss. R. R. Co., 9 Wis., 200. The degree of negligence exhibited by the plaintiff contributing to the injury, as well as the time of its happening, certainly has much to do with his right to recover; and we endeavored not to be misunderstood in this respect in the case cited. We were careful to distinguish between the case of the owner whose cattle escaped from his enclosure and strayed upon the road against his will, and that of him who voluntarily permitted them to go there, or allowed them to range in places where it was probable they' would do so. We said that the latter might require a different rule of law — that the obligation of diligence is relative, and its presence or absence in one party is required or excused in proportion as it is present or absent in the other. Idem, 213, 214. It is very true that we likewise observed, that we knew of no case in which it had been adjudged that the owner of cattle trespassing upon a railroad eould not maintain an action for their destruction, even if it were caused by the gross negligence of the company. But cattle are equally trespassers, whether they escape against the will and without the knowledge of the owner, or whether he voluntarily suffers them to go upon the lands of another, and it was with reference to the degree of care and diligence exercised by the owner, and not to the mere fact of trespass, that we were endeavoring to show that the rights and liabilities of the parties should be determined. We maintained that the fact of trespass alone was not sufficient to relieve the company from responsibility for acts of gross negligence, but that the trespass must be in some way connected with the owner of the cattle, and shown to have been committed with his knowledge or through Ms neglect. The act of permitting brute animals to stroll upon the track of a railroad, on account of the danger to which it exposes the life and limbs of passengers and the persons of employees, was characterized as grossly and criminally negligent, and it would be very remarkable if the person guilty of it should be held entitled to the same protection in the law against loss or-injury, as he who has exercised the utmost care and circumspection. It is not thus that the law discriminates between the different degrees of guilt or negligence. If the owner rashly or carelessly allows his oxen or horses to go upon the road, and they are killed by the gross negligence of the company or its servants, it is gross negligence against gross negligence, and there can be no apportionment of damages. In such case, it would seem that nothing short of proof of wanton or malicious injury would entitle him to compensation. And whether he is present at or absent from the place of injury at the time it occurs, would seem not materially to affect the question. In either case it comes through his own agency, and he must be regarded as the author of the misfortune. His negligence is in its nature continuing as well as gross. 'It exists at the time of the injury, and in that sense may be deemed the present and efficient, or proximate cause.

It cannot be doubted, that there was sufficient evidence to put the case to the jury upon these principles; and, inasmuch as the judge refused to do so, as well by the instructions given as by those denied, we reverse the judgment and remand the cause for a new trial, without going more in detail into the points argued by counsel.

Ordered accordingly.