Schultz v. Chicago & Northwestern Railway Co. , 44 Wis. 638 ( 1878 )

LyoN, J.

The motions for a nonsuit, and the request that the jury be directed to find for the defendant, were founded on the assumption that the evidence proved conclusively, either that the injuries complained of were not the result of any negligence of the defendant’s employees operating the train, or that the plaintiff wás guilty of some want of care which contributed proximately to such injuries. If there was sufficient evidence in the case to send these propositions of fact to the jury — that is, if it tended to show such negligence of the defendant’s employees, or if it did not show conclusively such contributory negligence of the plaintiff, — the motions and request were properly denied.

The plaintiff had been in the service of the defendant for a year or more when he was injured, and was familiar with the manner in which trains were run and switching was done on the depot grounds where he was employed. By engaging in the service of the defendant, he took upon himself the necessary and usual risks of that service. Strahlendorf v. Rosenthal, 30 Wis., 374. He was only required to exercise ordinary care to avoid injury, but this requirement could only be complied with by the exercise of that degree of caution which persons of ordinary prudence would use under the same conditions of danger and with like knowledge of the perils of the situation. Read v. Morse, 34 id., 315.

It must be conceded, we think, that the plaintiff had the right to act upon the belief that the train which injured him would be operated and run through the depot grounds as other trains had been uniformly operated and run there. There is no proof that trains were run there habitually, or at all, in violation of the statute. Laws of 1872, ch. 119, sec. 43. The presumption is, therefore, that they were not; for, in the absence of proof to the contrary, it must be presumed that the defendant obeyed the law. It is in proof that the bell was usually rung before starting an engine or train. Indeed, no exception to that practice was proved, unless the starting of the train which inj ured the plaintiff is an exception. Hence, the plaintiff had the right, without being chargeable with negligence, to act on the presumption that the bell of the engine would be rung before the cars were moved, and also before crossing Blount street, and that the cars would not be propelled on the side track, where he was at work, faster than at the rate of six miles per hour.

We find nothing in the Illinois cases cited by the learned counsel for the defendant, and relied upon to reverse this judgment, in conflict with the foregoing views. Chicago & N. W. R’y Co. v. Sweeney, 52 Ill., 325; Chicago & N. W. R’y Co. v. Donahue, 75 id., 106. Applied to this case, the doctrine of the Illinois court is, that the plaintiff is chargeable with knowledge of the manner in which engines were usually moved and switching done on the depot grounds where he was employed, and that, unless he exercised caution to avoid injury commensurate with the known and usual perils of the situation, he failed to exercise ordinary care. W e find no fault with this doctrine.

We think that the instructions which the learned circuit judge gave the jury, are in entire harmony with the views above expressed.

The testimony tended to prove that no bell was rung or-other signal or notice given of the moving of the engine when it backed across Blount street to throw the cars upon the side track; that the cars were propelled across the street and past the coal house at a greater rate of speed than six miles per hour; that the plaintiff did not know that the switch had been opened to throw cars on the side track, or that the cars were in motion, until the rear of the train was very near him; and that he had barely sufficient time to get off the track before the rear car passed the point he had just left.

The evidence is sufficient to support the findings of the jury that the bell upon the engine was not rung at or near the street crossing, or when the train was passing along the track, and no other warning was given the plaintiff that cars were about to be run upon the side track where he was at work; and that the cars were moving faster than at the rate of six miles per hour. These acts and omissions render the defendant chargeable with negligence; and there is abundant testimony to support the finding that such negligence was the cause of the injury to the plaintiff.'

It is probably true that had the plaintiff gone upon the east side of the track, or into the open space in the side of the coal house, he would have escaped injury. But it cannot be held that he was absolutely guilty of negligence because he failed to take one of these methods of escape. He was acting on short notice in the presence of imminent danger. He had no time to calculate chances, or to deliberate upon the means of escape. He was compelled to act at once, and it would be most absurd and unjust to bold him negligent because the instinct of self-preservation did not suggest the most effectual method of escape from the peril. The jury might well find (as they did) that he was not negligent merely because there was a better way of escape than that which he chose.

Upon the whole case we are clearly of the opinion that the questions of the alleged negligence, both of the defendant and the plaintiff, were properly submitted to the jury, and that the evidence supports the findings of the jury in respect thereto. The same observations apply also to the question of accord and satisfaction. If the plaintiff signed the alleged discharge or acquittance without knowing its contents and without intending to sign such an instrument, he is not bound by it. Butler v. The Regents, 32 Wis., 124. The evidence tends to prove that he signed the instrument under those circumstances, and sustains the finding in that behalf.

The specific questions submitted to the jury include all of the material questions of fact in the case which were controverted on the trial, and upon which there is any conflict in the testimony; and the findings thereon, with the facts conclusively-established, fully sustain the general verdict for the plaintiff.’

Some criticism of the charge of the judge is contained in the brief of counsel. It is said that he did not give sufficient prominence to the fact that the plaintiff was an-employee of the defendant; and also that he failed to comment upon the further fact that certain charges in the complaint, of specific acts and omissions of the defendant constituting negligence, were wholly unproved. The judgment cannot be disturbed on such grounds. If the charge was- defective, the judge should have been asked to give specific instructions so drawn as to supply the defects.

We think the record discloses no error, and we must, therefore, affirm the judgment of tbe circuit court.

By the Court. — Judgment affirmed.