Murray v. Abbot , 1884 Wisc. LEXIS 197 ( 1884 )

Cole, C. J.

We think a new trial should have been granted in this case because of the manifest inconsistency in the special findings. In the first place, the jury finds that there was no negligence on the part of the men operating the train in approaching and crossing the bridge at the speed they did after they discovered that men were on it. Then, in answer to the fifth question submitted, the jury find that it .was foreman Parmeter’s duty, wider the rules and regulations of the company, in case of danger to the men under him, to give danger signals to approaching trains, indicating that there was danger to the men; and, in answer to the sixth question, they find that Parmeter was guilty of negligence in not giving such signals upon that occasion. Now, as the learned counsel for the defendant claimed and clearly showed, the fifth finding manifestly proceeds on the ground that the company had made rules and regulations with respect to trains crossing a bridge' undergoing repairs, which rules and regulations required the foreman to give danger signals to approaching trains. This is the necessary implication or plain meaning of that finding.

The seventh question is this: “Were those in the management, operation, or ordering repairs of the road guilty of negligence in not causing, by general rules or by special instructions, trains to be slackened from their usual speed in approaching and crossing the bridge in question, while men were at work upon it, situated as the bridge was, and of its height and length, and with the approaches to it such as they were?” Answer. “Yes.” If this question and answer can have any intelligible meaning given to them, they must be understood as finding that the officers of the company — they who managed and operated the i’oad — who had charge of and ordered repairs, were guilty of negligence in. not causing or requiring, by a general rule or by special instructions, that trains should be slackened in their usual speed when approaching and crossing the bridge in question, while men were at work upon it, situated as the bridge was with respect to approaches, and being of the height and length the bridge was. Certainly, this is a finding that those in the management of the road were guilty of negligence in not causing or requiring, by general rule or special instruction, that the speed of trains in approaching and crossing a bridge undergoing repairs, should be slackened. The jury had just found that the foreman was guilty of negligence because he did not give danger signals to approaching trains, as the rules required him to do. Of course, these danger signals could have had no other object than to cause the approaching train to slacken its speed. So, in the one case, negligence is predicated on the fact that the foreman failed to comply with the general rules or special instructions; in the other case, negligence is predicated on the fact that proper rules or special instructions had not been adopted or given by those who had the management and operation of the road in charge, or by those who had the ordering of repairs upon it. It seems to us the inconsistency in these findings is too obvious to require further comment.

The seventh question is likewise obnoxious to the criticism passed upon it by defendant’s counsel, as being uncertain, in the disjunctive, and not limited to any single fact or issue. As the counsel observes, it is impossible to tell from the question and answer who it was that • had been guilty of negligence in failing to adopt rules or to give special instructions for slackening the speed of trains approaching, etc. Was it those who. had in charge the general management and operation of the road, or was it those who had charge of making repairs on the road? If questions of this nature are proper to be submitted to a jury at all, they should be framed in a way to admit of positive and direct answers. In this case the jury may have found that it was an act of negligence on the part of those who had charge of the general management of the road in not enacting proper rules. Or the jury may have thought that those who ordered the repairs of the bridges did not perform their duty, by failing to adopt rules or give special instructions applicable to the case.

Said the late eminent chief justice, in Carroll v. Bohan, 43 Wis. 218: “ The statute providing for special verdicts is an excellent one, tending to dispel the occasional darkness visible of general verdicts. But special verdicts are worse than useless, if courts do not submit for them single, direct, and plain questions, and insist upon positive, direct, and intelligible answers. Indirect, evasive, uncertain, or unmeaning answers should never be received. And when none other can be drawn from a jury the verdict should not stand for a moment.” Page 221. These remarks of the chief justice are quite pertinent to this case. The propriety of submitting to a jury such a question as whether it is negligence on the part of those who have charge of the management and operation of a railroad in not adopting rules, or in not giving special instructions, for slackening the speed of trains approaching a bridge undergoing repairs, is not obvious; but if it is a question for a jury to pass upon at all, it should be submitted in a clear manner. '

There are other questions discussed on the briefs of counsel, but we shall not consider them, because we think a new trial should have been granted for the reasons already given.

By the Court.— The judgment of the circuit court is reversed, and a new trial ordered.