Davis v. Button

McFarland, J. On rehearing. The opinion of this court on the first decision of the case touched all the points made by appellant except one; and upon re-examination, we are satisfied with that opinion upon all matters therein discussed. But with respect to the point that the court below erred in giving certain instructions to the jury, it is said in that opinion as follows: “We cannot consider the argument in support of this point. It does not appear that exceptions were taken to any portions of the instructions of the court.” The petition for rehearing, however, called our attention to the fact that there was a proper exception taken to the giving of instructions numbered 1, 2, and 4, asked by plaintiff. For that reason a rehearing was granted; and it only remains for us to inquire whether the judgment should be reversed on account of those instructions.

1. There are one or two things in the first instruction excepted to which, as abstract statements of legal principles, may, perhaps, be questionable; but it is evident that the instruction could have affected the jury to the prejudice of defendant, or at all, only in this: that therein the jury were told that where a plaintiff sues for injury caused by the negligent management of a railroad, or negligent construction thereof, it makes a sufficient prima facie case against the defendant to show that he was the owner of the railroad, without proving affirmatively that the persons in charge were his servants or employees. And we do not think that defendant was [250]injured by that statement. Surely in such a case it is not necessary for the plaintiff to show that the owner of the railroad had not leased it, or had not, in some other yray, given the entire control, management, and operation of it to another person. A railroad in operation differs in some respects from ordinary property; and we cannot see that its admitted owner can be injured by the inference, in the absence of proof to the contrary, that he is operating it. In Ferguson v. Wisconsin Central R. R. Co., 63 Wis. 145, the court says: “Where a company owns a railroad in operation, bearing the name of the company, and which presumably the company constructed, the presumption is, that the company operates it, and in order to release itself from liability for injuries to persons upon such road caused by the negligence of the employees operating the same, the burden of proof is upon it to show that it does not operate the same.” In the case at bar the answer admits that the defendant was the owner of the road.

2. The only part of the second instruction necessary to be noticed is the latter clause, which is as follows: .“Provided you further believe from the testimony that any injury sustained by deceased was not the result of contributory negligence on the part of said deceased.” The criticism on this language is, that it told the jury that defendant could not escape a verdict against him, .on account of any negligence of plaintiff, unless such negligence caused—that is, ivholly caused—the injury; whereas, the true rule is, that plaintiff, in such a case, cannot recover if his negligence contributes proximately to the injury. But we think that the instruction is not justly subject to that criticism,—particularly when considered with other charges given. It is probable that the language, considered by itself, is not such as would be adopted as a perfectly accurate statement by a moot oourt, or by a law-writer in the repose of his study, or .upon any other sort of dress-parade. But the judge of