Ketchum v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

SiebeckeR, J.

The appellant assails the court’s ruling-denying him judgment on the verdict of the jury. The argument is that the facts found show that there was a defect in the car, namely, a projection of the car door outside of its. normal position to the extent of eight inches, and that this projection of the car door caused him to fall under the train and produced his injuries, and that the defendant is therefore liable. This claim is based on the idea that sec. 1816,, Stats. (1898), as amended by ch. 254, Laws of 1907, imposes an absolute liability on railroad companies for all injuries sustained by employees caused by a defect in any car or other appliance specified in the statute and used by such employees in and about the business of their employment. This claim has not heretofore been presented under this statute. The ground of this contention is that the changes made in the phraseology of sec. 1816 by the amendments to it in ch. 254, Laws-of 1907, indicate that the legislature intended that railroad companies should be absolutely liable for such injuries, regardless of their negligence or of the contributory negli *217 gence of the person injured. Tbe amendment to subd. 1 of tbis section omitted therefrom the words, “if such defect could have been discovered' bj such company by reasonable and proper care, tests or inspection; and proof of such defect shall be presumptive evidence of knowledge thereof on the part of such company.” Were this change of subd. 1 of this statute the only amendment, the argument of plaintiff’s counsel might be persuasive in favor of the claim made by them. We must, however, consider all of the changes made in this section of the statute by ch. 254, Laws of 1907, and ascertain therefrom what the legislative intention was in amending this law regulating' the liability of railroad companies for injuries' sustained by their employees. The context of the amending act (ch. 254, Laws of 1907) discloses that the provisions thereof were based on the idea of responsibility for negligence, and subd. 1 of the statute is a part of and must be read in connection with the subsequent provisions. The provisions of the act, as a whole, evince a purpose to frame a scheme for regulating by statutory rules the liability of railroad companies fqr injuries to employees arising from a want of care of both the employer and the employee under the special conditions and circumstances for which a procedure in actions to recover damages for such injuries is prescribed. The provisions of the different parts of the act are so interrelated as to require that they be interpreted together in order to ascertain their meaning and the object sought to be accomplished by the legislature. Examining the statute from this viewpoint and giving effect to all of its parts, it is obvious that subd. 1 refers to and regulates liabilities for injuries resulting from actionable negligence, under the circumstances embraced therein. The first paragraph of the act, providing that liability shall be “subject to the provisions hereinafter contained regarding coiltributory negligence on the part óf the injured employee,” indicates in unmistakable terms that it pertains to injuries which result from negligence. The declaration respecting con- *218 tributary negligence, in its legal sense and implication, is that tbe legislature was dealing with injuries arising from negligence, and shows that the statute has no reference to injuries resulting from wilful misconduct or mere accident and that it can refer only to injuries resulting from negligence as the term is applied in the law. Furthermore, the terms “every action” in subd. 3, “all eases” in subd. 4, and “all cases under this act” in subd. 5 of the act, obviously refer to and embrace all cases of injuries comprehended in the preceding paragraphs and exclude the idea that any of the cases arising within the statute are not subject to these provisions of the act.

In the light of this meaning of the statute, there is no room for the argument that the defendant is liable to the plaintiff for injuries resulting from the defect in the car regardless of defendant’s negligence or of the plaintiff’s contributing negligence. The words “a defect,” as used in subd. 1 of sec. 1816, must be held to mean an existing unsafe and dangerous condition, the result of actionable negligence attributable to the railroad company under the conditions provided by the statute. In the following cases the statute was so applied, though the question for construction here presented was not specifically submitted or discussed: Kiley v. C., M. & St. P. R. Co. 138 Wis. 215 , 119 N. W. 309 , 120 N. W. 156 ; Haring v. G. N. R. Co. 137 Wis. 367 , 119 N. W. 325 ; Boucher v. Wis. Cent. R. Co. 141 Wis. 160 , 123 N. W. 913 ; Kiley v. C., M. &. St. P. R. Co. 142 Wis. 154 , 125 N. W. 464 ; Tidmarsh v. C., M. & St. P. R. Co. 149 Wis. 590 , 136 N. W. 337 .

It is contended that the court erred in denying plaintiff’s motion to change the jury’s answer to question 4, finding that the bottom of the car door was in its normal and usual condition when the train left Eau Claire. There is no direct evidence that the door was out of position at Eau Claire, and it appears from plaintiff’s evidence that it was first observed at Rusk to be out of place. The facts and circumstances show that no one observed any displacement of the door at *219 Eau Claire and tlie inspection record tends to show that the door was then in its normal - position. This furnished sufficient evidentiary basis to sustain the jury’s finding that the door was not out of place at Eau Claire. To warrant a disturbance of this finding by the court required an affirmative, uncontradicted showing that the door was then and there out of place. This is not the state of the evidence, and hence the court properly denied plaintiff’s motion to change the answer to question 4.

There is no evidence tending to show that the railway company was negligent in not observing that the door became displaced in going from Eau Claire to Rusk, a distance of about fourteen miles. The fact is established, then, that the company did not negligently cause this defect in the car door which plaintiff alleges caused his injuries, and it follows -that no legal liability on the part of the defendant for the damages the plaintiff suffered was shown. In this state of the case it is unnecessary to discuss other questions presented by the appellant respecting the insufficiency of the verdict, or any other questions raised regarding the verdict, because they do not affect the result of the finding in question 4, which establishes that the defendant did not negligently cause the defect complained of.

It is strenuously contended that the court erred in denying plaintiff’s motion for a new trial on account of the misconduct of the jury and the officer in charge, after the jury had retired to deliberate upon their verdict. It appears that the jury, during their deliberations on their verdict, requested the officer in charge to procure for them the measurements of cars and an engine tender in defendant’s yards at Menomonie, and that the officer obtained the requested measurements and furnished them to the jury. These facts are properly shown by the affidavits presented to the court. This extraordinary conduct of the jurors and the officer calls for action by the trial court imposing appropriate punishment *220 on the offenders. It is clearly reprehensible, regardless of whether or not it in fact prejudicially affected the verdict rendered, and an honest and proper administration of the law calls for the imposition of appropriate punishment by the trial judge on the offenders. The exercise of the judicial functions of trial courts, in order that they may so apply their powers as to attain impartial trials and prevent jurors and officers from indulging in conduct that is incompatible with the high standard necessary to secure the best results in the administration of justice, must rest in their sound judgment, and we doubt not that it has been fully invoked on all proper occasions.

It is argued that this case is ruled by the decision in Havenor v. State, 125 Wis. 444 , 104 N. W. 116 . We do not regard the misconduct here complained of as within the decision of that case. In that case it was held that all communication by the trial court with the jury, after they had retired to deliberate on their verdict, in the absence of the parties and their counsel, is prohibited unless it be in open court, and that no party should be put to the burden of showing that such a communication was in fact prejudicial. The reason for such a rule, where the trial judge is involved, is obvious. ISTo party should be required to bear the burden of convincing a trial judge that his conduct has prejudi-cially affected a verdict. The doctrine of that case has been adhered to in the subsequent case of Hurst v. Webster Mfg. Co. 128 Wis. 342 , 107 N. W. 666 , and in the case of Du Cate v. Brighton 133 Wis. 628 , 114 N. W. 103 , but is not to be extended to cases arising out of different circumstances. Sedlack v. State, 141 Wis. 589 , 124 N. W. 510 . In the instant case the fact is that the jury requested the officer to ascertain the exact measurements of a car and an engine tender, and it does not deal with an improper communication to the jury by the trial judge under whose direction they *221 were performing their duties in the case. True, their conduct was improper, hut from its nature it is not to be treated as coming within the rule of the Havenor Case, for it could be impartially considered by the trial judge and he could ascertain whether or not it operated prejudicially against the party complaining of the verdict. Unless the record discloses that it affected the substantial rights of the complaining party, within the provisions of sec. 2829, Stats. (1898), it should be disregarded. We 'must then test the ruling on this motion by the provisions of this section:

“The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”

The trial judge, in passing on appellant’s motion for a new trial, evidently concluded that the jurors’ misconduct did not affect the verdict they rendered. Obviously, the trial judge is in a situation where he is best informed of the probable effect, if any, such conduct would have on the verdict. The trial judge’s denial of the motion for a new trial must have been based on his belief that the jurors’ misconduct in no way affected the verdict and the result of the trial. His conclusion on the subject is of much weight in determining the point on appeal to this court, and should not be disturbed unless it satisfactorily appears that he erred in this respect. We find nothing in the record that leads us-to a belief that the ruling of the trial court was clearly erroneous. It is apparent that the forbidden evidence has no bearing on the finding embraced in question 4.- This supports the trial judge’s view that it had no weight with the jury in deciding the issue of the defendant’s negligence respecting the existence of the defect in the car door. All the reasonable inferences are that the improper information so acquired had no effect upon their *222 finding that the defendant did not negligently cause the door to be out of place when the train arrived at Rush. Oh. 192, Laws of 1909, now sec. 3072m, Stats., declares that no judgment shall he reversed or set aside or a new trial granted upon the grounds here urged, “unless in the opinion of the court, ... it shall appear that the error complained of has affected the substantial rights of the party seeking” such relief. In applying the rule of this statute it is necessary that the record show affirmatively that the trial court erred, that is, that the facts disclosed in .the record overcome the presumption in favor of the trial court’s ruling on the point raised, to warrant this court in holding that' the trial court’s ruling did in fact deprive the appellant of a substantial right and hence entitled him to a reversal of such ruling. See Oborn v. State, 143 Wis. 249 , 126 N. W. 737 ; Parb v. State, 143 Wis. 561 , 128 N. W. 65 ; Wiese v. Riley, 146 Wis. 640 , 132 N. W. 604 .

Whether or not the trial court had the right to entertain the motion after the term, had to be determined under the provisions of sec. 2832, Stats. (1898), which provides that a court may within one year from notice thereof relieve a moving party from the judgment against him “through his mistake, inadvertence, surprise or excusable neglect.” The trial court may, “in discretion,” grant such relief. Obviously, the trial court in this case considered that the appellant was excusable for not moving during the term and that he had proceeded with due diligence to bring the matter to its attention. We cannot say that the court abused its discretion in this regard. Kalckhoff v. Zoehrlaut, 43 Wis. 373 ; Robbins v. Kountz, 44 Wis. 558 .

An affidavit of advice of counsel is not required in moving under sec. 2832. Bloor v. Smith, 112 Wis. 340 , 87 N. W. 870 .

There is no showing in the record that the judgment appealed from was improperly awarded.

By the Court. — Judgment affirmed.

*223 Timlin, J. I concur in the construction given to sec. 1816, Stats. (Laws of 1907, ch. 254). But I think a new trial should have been granted on account of misconduct of the jury. I am afraid of this case as a precedent on the latter point.