MASCHEK v. ST. LOUIS R. R. CO.

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If the injury was the result of a mere accident or misadventure, plaintiff cannot recover. Schultz v. Pacific R. R. Co., 36 Mo., 24; Boland v. Missouri R. R. Co., 36 Mo., 492.

The driver's negligence did not cause the death of the child, nor contribute thereto. Schultz v. Pacific R. R. Co., 36 Mo., 24; Phila. & Reading R. R. Co. v. Spearen, 47 Penn., 300; Phila. & Reading R. R. Co. v. Hummel, 44 Penn., 375; Boland et al. v. Missouri R. Co., 36 Mo., 484; Isabel v. Railroad Co., 60 Mo., 482; Maher v. Railroad Co., 64 Mo., 274; Meyer v. Lindell Ry. Co.Court of Appeals, Cent. Law Jour., vol. 6, p. 427; Barker v. Savage & Gormley, 45 N. Y., 191; Ernest v. Hudson River R. R. Co., 24 How. Prac. Rep. 97; Cotton v. Wood, 8 C. B., 568; 7 Jur. N. S.. 168.

Jos. Jecko, for respondent.

NAPTON, J.-The only point made in this case which is thought by this court necessary to be decided is, whether the demurrer to the plaintiff's evidence should have been sustained. It is conceded that if the testimony conflicts, or if there is any from which a jury may fairly deduce a liability, the case must go to the jury. But where there is no evidence to authorize a verdict, and it can only be traced to that sympathy which jurors, and I may add judges, too insensibly feel for the weak in a contest with the powerful, we have heretofore considered it the duty of this court, however distasteful it may be, to interfere. The conclusion we have reached on this point renders unnecessary any investigation of the other two points made by the appellant, defendant below, in regard to the rejection of certain questions put by him during the trial, and in regard to the rejection of an instruction concerning accident or misadventure.

There was no evidence offered by the defendant in this case, and the principal witness for the plaintiff, indeed it might be said the only one of any importance, was a passenger on the car by the name of McIlvain. He was returning from his residence to the post-office, where he was a clerk, and was standing by the driver when the accident occurred, about one o'clock. The grade of the track on Carondelet Avenue, at the point where the child was killed, was slightly on the decline going north. Witness was on the west side of the driver, and hearing the driver shout "look out," "hold on," or "stop," he turned his face toward the east, and saw the little boy running for the track about six feet ahead of the mules and four feet east of the track, the driver with right hand on the brakes and his left pulling on the lines with such force that the tongue went up over the heads of the mules. When the driver shouted to the boy, he kept right on until he got to the middle of the track, where he turned his face north, got under the tongue, which was thrown up by the pull of the driver, until

he got to the axle, or where the tongue was so low that it struck him, and he fell on his face and was run over by one of the hind wheels. The driver was all this time trying his best to stop the car, and it appeared to the witness that all this occurred in a moment."

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The question of negligence in the driver must be solved by an answer to one of two questions. What did the driver do which he ought not to have done, or what did he omit to do which he ought to have done? The only hypothesis upon which the assumption of negligence can be based, is that the driver did not shout, ply the brake, and pull on the mules as soon as he ought. He could do nothing more than what he did, but if he waited too long when he had an opportunity of doing those things sooner, it was negligence. Is there any evidence to show this or that could lead to such a conclusion? There was no positive proof that he ever saw the little boy till he hallooed; but suppose he saw him when he first left the sidewalk. Of course it will not be pretended that whilst the child was on the sidewalk the driver had any right to imagine that he would undertake to cross the street, but when he left the sidewalk he was eleven feet from where he was when Mellvain first saw him. How long would it take this little boy three years old, dressed in coat and pants, and not in a frock, to run eleven feet?

All of the transaction which the witness McIlvain saw, he says occurred "in a moment." How many moments must have passed before McIlvain saw him after he started from the curbstone on a run? And how many moments transpired before McIlvain's attention was turned by the shouts of the driver, after the driver had commenced plying the brakes and pulling on the mules? The driver, it appears, without contradiction, was steady and perfectly sober; the mules were on a slightly down grade and going in a moderate trot. The recklessness of the little child, which is obvious, was no excuse for negligence in the driver, if there was any, but we confess our inability to discover any proof of negligence, and, therefore, must in accordance with our uniform practice reverse the judgment. The other judges concur.

See Johnson v. Chicago, etc., R. R. Co., 1 Am. & Eng. R. Cas., 155; Wright v. Malden, etc., R. R. Co., 4 Allen, 283; Callahan v. Bean, 9 Allen, 401; McLain v. Van Zandt, 7 Jones & Spencer (N. Y.), 347; Hartfield v. Roper, 21 Wend., 615; Lynch v. Smith, 104 Mass., 53; Mangam v. Brooklyn, etc., 38 N. Y., 455; McGarry v. Loomis, 63 N. Y., 104; Fallon v. Central Park, etc., R. R. Co., 64 N. Y., 13; Barksdull v. New Orleans, etc., R. R. Co., 23 La. Ann., 180; Lovett v. Salem, etc., R. R. Co., 9 Allen, 557; Government St. R. R. Co. v. Hanlon, 53 Ala., 70; Meyer v. Midland R. R. Co., 2 Neb., 319; Brown v. European, etc., R. R. Co., 58 Me., 384; Norfolk, etc., R. R. Co. v. Ormsby, 27 Grått., 445; Meeks v. Southern Pacific R. R. Co., 52 Cal., 602; Toledo, etc., R. R. Co. v. Grable, 88 Ill., 441; Cleveland, etc., R. R. Co., v. Manson, 30 Ohio St., 451; Glassey v. Hestonville, etc., R. R. Co., 57 Pa. St., 172; Philadelphia, etc., R. R. Co., v. Long, 75 Pa. St., 257;

Daly . Norwich, etc., R. R. Co., 26 Conn., 591; Evansville, etc., R. R. Co. . Wolf, 59 Ind., 89; Baltimore, etc., R. R. Co. v. McDonnell, 43 Md., 551; Gardner v. Grace, 1 Fost. & Fin., 359.

JUCKER, Adm'r,

v.

CHICAGO & NORTHWESTERN R. R. Co.

(Advance Case, Wisconsin. April 19, 1881.)

1. In an action at law, where there is any evidence upon which the jury will be justified in finding a verdict for the party who has the burden of proof, the case should not be taken from them.

2. The proper legal meaning of the term "proximate cause" discussed. 3. In an action against a railway company for injuries to a child, causing its death, the plaintiff's evidence tended to show that the child was 22 months old, and previously in good health; that defendant's engine struck the child and threw it into the air, and about 15 feet away from the track; that it was taken up senseless, and with one leg broken; that the broken limb was adjusted and bandaged by physicians, who continued to treat the child, and whose directions and prescriptions were strictly followed; that a cough set in directly after the injury, and the child manifested great pain and nervous irritability, with sleeplessness, lack of appetite, etc.; that in a few days it had an unnatural appearance of the eyes; that these symptoms continued and increased until its death; that about eight days before its death it grew much worse, and was alternately hot and cold, and its face frequently flushed and red; that a few days before death the physicians removed the splints and bandages from the broken limb; and that the death occurred about a month after the injury. Held, that upon this evidence the jury would have been justified in finding that the death was caused by the injury inflicted by defendant.

Shepard & Shepard, for appellant.

C. A. Eldredge, for respondent.

ORTON, J.-The rule laid down in Improvement Co. v. Munson, 14 Wall., 448, cited by the learned counsel of the respondent, and commented upon and approved in Pleasants v. Fant, 22 Wall., 122, has been substantially recognized by this court in numerous cases. That rule is: "If there is any evidence upon which the jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed, the court cannot take the case from the jury. The question is, is the evidence sufficient to justify a verdict?" By the very terms of this rule the question is not whether the court would have found a verdict in the case made by the evidence, but whether the jury would have been justified in finding a verdict upon it. The party is entitled to the verdict of the jury, rather than the finding of the court on questions of fact, if the jury would be warranted or "justified" in finding a verdict.

upon the evidence. When properly considered, there is scarcely a seeming conflict of authority in respect to the rule for granting nonsuits and ordering verdicts by the court in jury trials.

Tested by this rule, ought the Circuit Court to have granted a nonsuit in this case? We think there was testimony sufficient to justify the jury in finding that the company was negligent, and that the mother of the child used ordinary care, under the circumstances, to guard and restrain it from straying upon the track of the railroad, and to prevent this and similar accidents happening to it. We do not understand that the learned counsel of the respondent relies very strongly upon these two points, but he insists with much more plausibility that there was not sufficient evidence that the injury of the child at the time of the accident caused its death to be submitted to the jury, or, in other words, that there was not sufficient evidence to justify the jury in so finding. Whether the death of the child directly and naturally resulted from the alleged injury as its proximate cause, is an important question, and as difficult to determine as a like question in criminal homicide, although by a different rule of evidence as to its weight and effect. This being a civil action, a preponderance of the evidence, or a prima facie case unrebutted, upon this question, would justify a verdict as in other civil cases. Where the death did not result immediately or very soon after the injury, as in this case, the question is still more difficult, and would seem to present a very proper case for the testimony of the attending or other physicians cognizant of the facts. But although it is a question of medical jurisprudence, and a proper one for medical testimony, yet I know of no rule established by judicial authority that makes medical testimony in such case indispensable. The jury must determine the question upon the facts proved, as in other cases, and the evidence, whether professional or not, must be sufficient to justify their verdict.

I shall not enter into the refinements which have been put upon the maxim "In jure non remota causa, sed proxima, spectatur," but state the rules generally recognized and approved by the authorities, and applied in cases of this sort, by which it must be determined whether the jury in this case would have been justified in finding from the evidence that the injury was the sole cause of the death of the child, and that therefore its death was caused by the negligence of the company. The general rule laid down by Chief Justice Appleton in Moulton v. Sanford, 51 Me., 134, and cited approvingly by Chief Justice Dixon in Sutton v. Town of Wauwatosa, 29 Wis., 21, is as follows: "The cause of an event is the sum total of the contingencies of every description, which, being realized, the event invariably follows. It is rare, if ever, that the invariable sequence of the events subsists between one antecedent and one consequence. Ordinarily that condition is usually termed the cause whose share in the matter is the most con

spicuous, and is the most immediately preceding and proximate to the event." In further exposition of the rule, it may be said here, as in Kellogg v. C. & N. W. Ry. Co., 26 Wis., 223: "The maxim, however, is not to be controlled by time or distance, but by the succession of events," and that "the natural and ordinary means" to produce the alleged consequence must be shown; and, as in Wharton on Negligence, § 78 et seq., that the party "might have reasonably expected" such a consequence of his negligence, or that such a result would be "an ordinary natural sequence from such a cause; or, as said by Chief Justice Cockburn, in Clark v. Chambers, 13 Am. Law Rev., 175, such a consequence would be "probable" from such a cause. In illustration of the rule, and in its application to that case, it is said, in Perley v. Eastern R. Co., 98 Mass., 414: "It is as much so as pain and disability are proximate effects of an injury, though they occur at intervals through successive years after the injury was received. Yet these are called proximate effects, though the actual effects of the injury may be greatly modified in every case by bodily constitution, habits of life, and accidental circumstances." It may properly be added, further, that the cause of the alleged consequence itself must have been "adequate and efficient." Wharton on Negligence, § 73.

These rules have been applied with so much clearness to a variety of cases in this court that cases elsewhere need not be cited. Oliver v. Town of La Valle, 36 Wis., 592; Stewart v. Town of Ripon, 38 Wis., 584; Hall v. City of Fond du Lac, 42 Wis., 274; Holmes v. City of Fond du Lac, id., 282. It remains only to apply these rules to the evidence of this case. The child was of the age of 1 year and 10 months, and in good health. It was on the railroad track with another small child, who left the track just before the train arrived. The train approached at the speed of about 15 miles per hour, and the engine came in contact with the child and threw it into the air and off and away from the track about 15 feet. When the child was taken up it was senseless, and one of its legs. was broken and its head bruised. Two physicians were called, who adjusted and bandaged the broken limb and continued to treat the child, and their directions and prescriptions were, in all cases, strictly followed. A cough set in directly after the injury, and the child manifested great pain and suffering, was irritable, restless, and unable to sleep but little. It cried almost constantly, and frequently seized its own hair with its hands and threw its arms about its head. It appeared to be very sick, and was pale and without appetite for food except milk. In a few days it had an unnatural appearance of the eyes. These symptoms continued and increased until death. About eight days before its death it grew much worse, and cried less, because unable to do so, and was alternately hot and cold, and its face frequently flushed and red. A few days. before death the physicians removed the splints and bandages from

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