Langhoff v. Milwaukee & Prairie du Chien Railway Co. , 19 Wis. 489 ( 1865 )

By the Court,

Dixok, C. J.

We reverse the judgment.and remand the cause for a new trial, on the ground that there was no such clear and decisive evidence of negligence on the part of the deceased, Mrs. Langhoff, at the time of the injury and contributing to it, as authorized the court to nonsuit the plaintiff, or take the case from the jury. What constitutes negligence, or that want of care on the part of the person receiving the injury which deprives him of any remedy, and neutralizes, as it were, the wrong of the party by whom the injury is inflicted, is a question depending on various circumstances. What may be negligence under some circumstances and conditions, may not under others. As observed by counsel, it is not a fact to be testified to, but can only be inferred from the res gestae — from the facts given in evidence. Hence it may, in general, be said to be a conclusion of fact to be drawn by the jury under proper instructions from the court. It is always so where the facts, or rather the conclusion is fairly debatable, or rests in doubt. It is only where there is an entire absence of evidence tending to establish the case, or where, as in Achtenhagen v. Watertown, 18 Wis., 331, the negligence of the party injured or killed is affirmatively and clearly proved by the plaintiff, so as to admit of no doubt or controversy, that a nonsuit may properly be ordered. The negligence of the defendants in this case — the unlawful and dangerous speed at which their trains were being driven, and their community in the perpetration of the wrong, cannot, from the evidence, be doubted. Were we satisfied from the evidence that the deceased knew the speed at which the trains were moving, or that she could reasonably have calculated it, or that she knew there were two trains running nearly side by side over the two roads, instead of one over the road of the Milwaukee and Prairie du Chien Company, then we might agree that the nonsuit was proper. But we are not satisfied of these things; and because we are not, they are matters which should have been submitted to the determination of the jury. Certainly some consideration is to be given to the circumstances that the defendants were prohibited by law from running their trains at a rate of speed not exceeding six miles an hour, and that if the trains had been moving at that rate or less, the deceased would have had ample time to pass the tracks unharmed and without risk of harm. Not that this circumstance would have authorized the deceased, knowing the rate at which the trains were moving, to have gone upon the tracks or attempted to cross, regardless of her own life and safety, but that it might and probably did materially influence her judgment in determining whether it was safe and proper for her to do so. It must be assumed that she knew the law, and knowing it she might properly assume that the defendants were acting in conformity to its provisions. Seeing the trains at such a distance from the intersection of the street upon which she was passing, that she might safely cross if they had been moving at a lawful rate of speed, she might well have exercised less care and watchfulness, without the imputation of negligence, than if there had been no such limitation. It is not an easy matter for one standing upon or near the track to judge correctly of the speed of an approaching train. Again, if the deceased saw only the Milwaukee train, and knew its speed, and judged that she could pass over with safety, and judged correctly, and did so, and then was caught by the other train upon the adjacent track, which she did not see, and her life destroyed, can negligence be imputed to her? It seems to us not, and that upon this question, as well as the other, the case should have been submitted to the jury.

Judgment reversed, and a new trial awarded.

DOWNER, J., was absent in this case, deeming himself disqualified to sit by reason of his interest as a stockholder in the Milwaukee & Prairie du Chien Railway Company.