the

the case as to the Robert A. Johnson Com- [evidence defendant's counsel called court's attention to the fact that, upon mopany. The railway company appealed from the tion of appellant, the Robert A. Johnson judgment so rendered first to the circuit | Company had been brought in and made a court and then to this court, where the judg-party defendant in the civil court, and asked ment was reversed and the cause remanded for a ruling as to whether that company was for further proceedings according to law. still a party to the action. While the writ173 Wis. 220, 180 N. W. 808. Upon a new ten judgment made no disposition of the trial in the circuit court pursuant to such case as to that company, it appeared that the remittitur from this court, a verdict was special verdict submitted to the jury at the rendered in favor of the plaintiff and against trial in the civil court contained three questhe railway company for $6,500, which was tions affecting its liability, all of which were set aside and a new trial ordered. Upon answered against the plaintiff. The attorney such new trial, the jury returned a special for appellant then made a motion after ververdict finding that on January 3, 1919, while dict to change those answers, which motion the plaintiff was in the act of boarding one was denied by the trial court, and judgment of defendant's street cars the car was sud- was rendered upon the verdict in favor of the From the denly moved forward from a state of rest; plaintiff and against appellant. that such sudden moving of the car constitut- judgment so entered the defendant appealed ed an act of negligence on the part of defend- to the circuit court. The circuit court affirmant's employés; that such negligence of deed the judgment of the civil court, which fendant's employés was the proximate cause upon appeal was reversed by this court. It of plaintiff's injury; that the plaintiff did not seems that the circuit court, in considering fail to use ordinary care for his own safety, the appeal from the civil court, gave no conand awarding damages in the sum of $6,000.sideration to the judgment as it affected the Upon this verdict judgment was rendered in Robert A. Johnson Company, and no quesfavor of the plaintiff and against the defend- tion in that respect was raised when the case ant in the sum of $6,000, from which judg- was here upon the former appeal. It evidently was assumed by all, in all proceedings ment defendant brings this appeal. prior to the last trial, that the Robert A. Johnson Company had been eliminated from the case. Although the written judgment

The record discloses that the defendant operates an electric street railway on Grove street, which runs north and south, in the city of Milwaukee; that on the day in ques-entered in the civil court makes no disposition the car stopped just before reaching the tion of the case as to the Robert A. Johnson intersection of Lincoln avenue, for the pur- Company it does appear from the record pose of taking on passengers; that a truck that the verdict of the jury was such as to owned by Robert A. Johnson Company was entitle it to a judgment of dismissal. It is parked between the curb and the street car not necessary that the judgment should be in track, standing at an angle of about 45 de- writing. The oral judgment of the court is grees in a northwesterly and southeasterly sufficient. Wallis v. First National Bank of direction, leaving a space between the motor Racine, 155 Wis. 533, 145 N. W. 195; Wehr truck and the body of the street car of about v. Gimbel Brothers, 161 Wis. 485, 154 N. W. 16 inches. The front end of the street car 972. But whether there was such an oral had passed the truck, but the rear end had judgment does not appear from the record benot yet reached the truck. The plaintiff fore us, so that we are unable to determine attempted to board the street car, and while whether any judgment was actually entered he was gripping a tubing in the center of the by the civil court dismissing the action as to vestibule, which served as a handhold, and the Robert A. Johnson Company. However, had his left foot on the lower step, and this is a question in which the appellant here before he had gripped the handhold with his is not interested. Bakula v. Schwab, 167 Wis. right hand, or placed his right foot on the 546, 168 N. W. 378. The rights of appellant lower step, the street car was suddenly against the Robert A. Johnson Company are started, and before he could draw his body not affected by the disposition which the trial into the vestibule of the car, he came into court made of plaintiff's cause of action contact with the truck, which brushed him against that company, and it is in no posifrom the car and threw him violently to the tion to raise the question. Id. That is a ground, inflicting the injuries complained of. question in which the plaintiff only is interEdgar L. Wood, of Milwaukee (A. L. ested, and he seems to have abandoned the Gardner, of Chicago, Ill., of counsel), for ap-action as to the defendant Robert A. Johnson pellant.

Raymond J. Cannon, of Milwaukee (M. L. Lueck, of Port Washington, of counsel), for respondent.

OWEN, J. (after stating the facts as

Company, if in fact no more effectual disposition has been made thereof.

[3, 4] The defendant contends that judgment should have been directed in its favor because it was guilty of no negligence. The jury found upon sufficient evidence that the

(186 N.W.)

from a state of rest while the plaintiff was in the act of boarding the car. Appellant argues that it was not the sudden starting of the car that caused the injury, but the proxinity of the truck parked in the street, of which the conductor had no knowledge, and that, having no knowledge of the dangerous presence of the truck, he cannot be held to have anticipated that this accident might probably happen by reason of the starting of the car before plaintiff was safely aboard. It is likely true that the conductor did not know that the truck was in the street, and that he cannot be held to have reasonably anticipated that the plaintiff would suffer the particular accident and injury. But it is not necessary that he should anticipate a specific injury. It is sufficient that he should reasonably have anticipated that some injury might probably result. Coel v. C. B. T. Co., 147 Wis. 229, 238, 133 N. W. 23. The conductor was chargeable with knowledge that plaintiff was not safely aboard the car, and he should have anticipated that some injury might probably result to the plaintiff from the sudden starting of the car while plaintiff was in the act of boarding the same. This is sufficient to establish legal negligence on the part of the defendant.

Even

[5] Nor can it be held, as argued by appellant, that the presence of the truck in the street was an intervening cause of the injury. It was rather a concurring cause. though the presence of the truck constituted negligence on the part of the owner, the injury would not have occurred had the conductor refrained from starting the car until the plaintiff was safely aboard.

[7] Appellant assigns as error the refusal of the court to include in the special verdict questions calculated to elicit findings as to whether the conductor knew the truck was parked in the street close to defendant's track, and whether the plaintiff in the exercise of ordinary care would have safely boarded the defendant's car had he not come in contact with the truck. These questions were immaterial, unless the presence of the | truck constituted an intervening cause, which we have negatived.

[8] Complaint is also made because the court refused to include in the special verdict the question of whether there was a want of ordinary care on the part of the conductor, in giving the signal to start the car while the plaintiff was standing on the car step and holding onto the car with his hand. This element was included in the question submitted relating to defendant's negligence, with the instructions thereon, and its submission was not only unnecessary, but would have been improper, in view of the question submitted, by which it was determined that the sudden moving of the car constituted an act of negligence on the part of defendant's employés.

[9] The question of contributory negligence was submitted in this form:

nary care for his own safety and thereby prox"Did the plaintiff at said time fail to use ordiimately contribute to produce his injury?"

The appellant complains of the form of this question for the reason that neither the question nor the court's instruction thereon indicated to the jury that they should answer the question, "Yes," if they found that a slight want of ordinary care on the part of the plaintiff proximately contributed to produce the injury. It is true that neither the question nor the instruction advised the jury that they should answer the question, "Yes," if they found that a slight want of ordinary care on the part of the plaintiff proximately contributed to produce the injury, but it did require them to find whether any want of ordinary care on the part of the plaintiff

[6] Error is assigned because the court did not charge the jury with reference to the burden of proof. The questions were SO framed that the burden of proof was on the affirmative side in each instance. With reference to each question the jury were told that before they could return an affirmative answer they must be satisfied to a reasonable certainty by a consideration of all the evidence that the fact inquired about existed. If not so satisfied, they were directed to answer the question, "No." This most effectu-proximately contributed to the injury. Cerally placed the burden of proof upon the party required to prove the affirmative of each question propounded, and made a charge with reference to the burden of proof unnecessary. The trial judge, in his opinion upon the motions after verdict, stated that this was his uniform practice, and expressed the opinion that it was a better and safer practice than to attempt to define the terms "burden of proof" and "preponderance of evidence." It appears to be a simple and effective way of impressing upon the jury the rule which should govern them in arriving at their determination, and rendered an instruc tion with reference to the burden of proof unnecessary.

tainly any want of ordinary care includes slight want of ordinary care, and the jury must have understood that if the plaintiff was guilt of any want of ordinary care, no matter how slight, which proximately contributed to the injury, they were required to answer the question, "Yes." While it has been held proper to charge the jury that any want of ordinary care, no matter how slight, which proximately contributes to the injury is sufficient to find the plaintiff guilty of contributory negligence, it can have no other purpose than to emphasize that which is comprehended in the expression "any want of ordinary care." While this emphasizing phrase is usually indulged in connec

tion with contributory negligence it may, with the same propriety, be used in connection with the defendant's negligence. In fact, judicial impartiality between the parties would seem to require that it be used with reference to the negligence of both parties, or not at all. To submit a case in any form which calls upon the jury to find whether the plaintiff is guilty of a slight want of ordinary care, while calling upon them to find whether the defendant is guilty only of a want of ordinary care, is apt to give rise to the impression in the minds of the jury that there are classifications of ordinary care. This is not the case. In AStin v. Chicago, M. & St. P. R. Co., 143 Wis. 477, 484, 128 N. W. 265, 268 (31 L. R. A. [N. S.] 158), it was said "that there are no subdegrees within the major degrees of negligence, known in our law." This means that

there are no classifications or subdivisions of

want of ordinary care. Any want of ordinary care on the part of the plaintiff which proximately contributes to his injury constitutes contributory negligence. Likewise any want of ordinary care on the part of the defendant which is the proximate cause of the injury constitutes negligence on the part of the defendant. This is the rationale of the discussion of contributory negligence to be found in Dreher v. Fitchburg, 22 Wis. 675, 99 Am. Dec. 91, Ward v. Chicago, M. & St. P. Ry. Co., 29 Wis. 144, and Bloor v.

Delafield, 69 Wis. 273, 34 N. W. 115, where the doctrine is firmly established in the jurisprudence of this state that it is not slight negligence but any want of ordinary care on the part of the plaintiff proximately contributing to his injury that bars a recovery. Section 1809, Stats., providing that slight want of ordinary care on the part of the

plaintiff shall not prevent a recovery for injuries sustained at railroad crossings under certain circumstances possibly introduces an exception to the general rule above stated, but has no bearing upon the question we are discussing.

The last sentence above quoted is assigned as error because, it is contended, that to be a proximate cause "it must be a cause which the person responsible for it ought reasonably foresee might probably produce some such result." It is true that a correct statement of the rule requires the word "probably" to occur between the words "might" and "produce." Meyer v. Milwaukee E. R. & L. Co., 116 Wis. 340, 93 N. W. 6; Feldschneider v. Chicago, M. & St. P. Ry. Co., 122 Wis. 423, 99 N. W. 1034. But by the omission of that word, under the circumstances, the appellant was not prejudiced. This statement was made by the court with reference to plaintiff's contributory negligence, and permitted the jury to find him guilty of contributory negligence if he ought reasonably to have foreseen that his conduct might produce some such result,

even though it might not "probably" produce such result. The error really gave the jury too broad rather than too narrow a latitude in construing plaintiff's conduct as contributory negligence, and was error prejudicial only to the plaintiff.

[11] We are given more trouble, however, by the following phrase in the above-quoted

instruction, namely:

"It likewise must have been the cause of the

result without any other outside cause coming in to interfere and produce the result."

This is not a correct statement. It is not necessary that a proximate cause should be the cause of the result without any other outside cause coming in to interfere and produce the result. This would preclude the possibility of fixing a proximate cause where two acts of negligence concur to produce an injury. It not infrequently happens that injury results from two independent negligent acts, but for either of which the injury would not occur. Under such circumstances, it is held that either wrongdoer whose negligent act concurs to produce the injury is liable therefor. Mehegan v. Faber, 158 Wis. 645, 149 N. W. 397; Pennell v. Rumely Products Co., 159 Wis. 195, 149 N. W. 769; Ellis v. Chicago & Northwestern Railway Co., 167 Wis. 392, 167 N. W. 1048. Under such circumstances, the negligent act of each wrongdoer constitutes a proximate cause. If it were true that the "proximate cause must be the cause of the result without any other outside cause coming in to interfere and produce the result," then under such cir"Now a cause in order to be a proximate cumstances the negligent act of neither cause must first of all be a real, acting cause, wrongdoer constitutes a proximate cause. one that takes effect, that is the first thing; it The language quoted was addressed to the

[10] In submitting question 3 of the special verdict, inquiring whether the negligence of the defendant constituted the proximate cause of plaintiff's injury, the term "proximate cause" was defined in accordance with the decisions of this court. The definition, however, was not repeated in submitting the question relating to contributory negligence. That the jury had some difficulty in understanding their duty with reference to that question is evidenced by the fact that on two different occasions they called upon the court for further instructions with reference thereto. During the colloquy between the jury and the court, the trial judge said:

(186 N.W.)

Appeal from District Court, Williams County; Frank E. Fisk, Judge.

jury in connection with the question relating ing the period of his possession, and where all to plaintiff's contributory negligence, and its claim to title is stipulated in favor of another natural import, as so used, was to convey the as owner on condition that the possessor's impression that, in order to find the plain-claim to the crop is recognized, the claim for tiff guilty of negligence which proximately hail insurance belongs to the owner of the crop. contributed to the injury, it was necessary to find that his negligence was the cause of the injury without reference to any other cause, and would exclude the negligence of the defendant itself, and having already found the defendant negligent, they could not also find the plaintiff negligent. We think the use of this language, under the circumstances, was clearly error, for which the judgment must be reversed.

Complaint is also made because the damages are excessive and because the court authorized the jury to include in the damages reasonable compensation for future loss of earnings, pain, and suffering proximately resulting from the injury. In view of the fact that there must be a new trial, it is unnecessary to discuss at length the questions thus raised, and we will do no more than say that the evidence justified the assessment of future damages, although we think the amount of damages assessed is exceedingly liberal, and we would be much better satisfied with a considerably smaller amount. It is not necessary for us to determine whether they are excessive.

Judgment reversed, and cause remanded for a new trial.

(Syllabus by the Court.) Stipulations 18(1)—Claim for hail insurance held to belong to crop owner.

M. had been the owner of certain lands subject to liens of mortgages and a judgment. The mortgages were foreclosed. The judgment creditor (D.) took assignments of the sheriff's certificates, and at the expiration of the period of redemption took sheriff deeds. M. continued in possession and sowed crops. His grantees brought actions to determine adverse claims to the land. In these actions D. answered, setting up no claim to the crops and no claim for the value of the use and occupation. The crops were destroyed by hail in July. In August and September judgments were entered in the adverse claims actions in favor of the defendant D. without a disposition of the claim for hail insurance, but with the specific understanding that M. would be permitted to harvest such crops as remained. It is held:

Action by N. W. Simons and others against Milo B. Dowd and others. Judgment for plaintiffs, and defendants appeal. Affirmed. B. H. Bradford, of Minot, for appellants. Craven & Converse and John J. Murphy, all of Williston, for respondents.

BIRDZELL, J. This is an appeal from a judgment in favor of the plaintiffs in an action brought to restrain certain of the defendants from paying hail insurance to the defendant Milo B. Dowd. The facts necessary to be stated are as follows: The defendant Dowd was the owner of a judgment of about $7,000 against one L. A. McGinnity. See Dowd v. McGinnity, 30 N. D. 308, 152 N. W. 524. Prior to the transactions directly involved in this litigation McGinnity had been the owner of lands upon which this judgment was a lien. McGinnity had also given mortgages on the lands which had been foreclosed in two proceedings, each embracing different tracts. Dowd, within the year of redemption from these mortgage foreclosures, obtained assignments of the sheriff's certificates of sale, and, at the expiration of the period for redemption, obtained sheriff's deeds. This was all completed before the beginning of the cropping season of 1919-one deed issuing in November 1918; the other March 3, 1919.

During the period of the litigation between Dowd and McGinnity which resulted in the judgment in Dowd's favor, McGinnity transferred or sold his property so that it appeared of record in the name of his brother, Frank McGinnity, and, through leases, the right of possession was in his (L. A. McGinnity's) wife as tenant. The personal among whom were some of the plaintiff's, and property was transferred to certain creditors, they resold or retransferred it to Mrs. Mc

Ginnity.

After the sheriff's deeds were issued the McGinnitys continued to farm the lands during the season of 1919. Certain actions were brought in April by Frank J. McGinnity and Nellie McGinnity, wife of L. A. McGinnity, to determine adverse claims to the lands. One of these actions was tried in August, 1919, on stipulated facts, and Dowd was successful. After the submission of this case to the court, the other action came on for hearing, and plaintiff's counsel announced that he could see nothing to attack in the foreclosure proceedings through which the defendant Where crops, sown by one whose possession Dowd claimed, and that he had no evidence is continuous, have been destroyed by hail dur- to offer. The defendant objected to a dis

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

missal of the action and asked for an affirm- | this controversy. The two judgments entered ative decree quieting title. It was then after the crops were destroyed are conclusive understood that the plaintiff's attorney would to this effect. But, if it be conceded that the stipulate for the entry of a judgment in ownership of the crops would ordinarily folfavor of Dowd. The matter was not con- low the ownership of the land (and upon this cluded, however, that day, and the day fol- we express no opinion), on the record before lowing defendant's counsel requested the us we are of the opinion that it does not plaintiff's attorney to sign a stipulation for follow that Dowd was entitled to the injudgment. At that time plaintiff's counsel surance. The McGinnitys had been long in objected on the ground that the McGinnitys possession of the land. It was being taken had put in the crop, that whatever crop was from them through foreclosure proceedings. there belonged to them, and that they should It seems that to test the validity of these not be disturbed on account of it. Counsel proceedings they had brought the actions to testifies that there was in fact an under- determine adverse claims. Dowd, in answerstanding reached that the 1919 crop was to ing, merely asked that he be adjudged to be go to McGinnitys. The defendant's attorney, the owner in fee, and that, if the foreclosures however, while admitting that the McGin- upon which his title was based should be nitys were to be permitted to harvest such decreed invalid, he be adjudged to be the crops as remained, further testified that he owner of the mortgages foreclosed. These stated to plaintiffs' counsel that the crops actions were brought early in the spring and. were no good, that they had been hailed out in the very nature of the situation, a contest twice, that they would never be cut, and was invited to determine, not merely the that the defendant Dowd would not waive title, but the right to possession, including any rights to possession of the land, nor the right to the crops. Dowd did not see fit any right to anything, upon which counsel to assert at this early date any claim to the signed the stipulation for the entry of judg- crops, neither did he seek recovery for the ment. This was about the middle of August, use of the occupation, as he might well have 1919, and the judgments in the two actions done. Section 8145, Compiled Laws of 1913. were entered, one in August, and one in At the time these actions were being settled September. in August, the crops, had they been standing, would have been practically mature; but they had been destroyed by hail. This fact was adverted to by Dowd's attorney, and it was assigned as a reason why McGinnitys should stipulate unconditionally for the entry of judgment in Dowd's favor. At that time the further assurance was given that such crop as remained might be harvested by them. It is clear to our mind that there was then no thought of any hail insurance, and it is equally clear that the only interest that McGinnitys were claiming was the crops, and that Dowd conceded the claim. In view of these facts, the hail insurance must be held to belong to the McGinnitys. It has been properly subject to the payment of both the flat tax and the indemnity tax against the land.

It appears that in July, 1919, there were two hailstorms, which damaged the crops growing upon the lands in question. The losses were adjusted, with the participation of the McGinnitys, at 100 per cent., and in the course of time a hail insurance warrant for $3,115, payable to the order of Dowd, was sent, care of the clerk of the court, and it is this fund that is in litigation here. Dowd claims it by virtue of the ownership of the lands, and the plaintiffs claim it through assignment from the McGinnitys, and by virtue of the latter's alleged ownership of the crop.

The appellant contends for two main propositions: (1) That, as Dowd owned the land at the time the crops were destroyed, and as McGinnity had no lawful right there in, he (Dowd) was the owner of the crops; and (2) that the plaintiffs are not in a position to assert, equitably, any right to the insurance.

There can be no doubt that Dowd was the owner of the land at the time the crops were put in and for the entire period covered by

It follows that the judgment appealed from must be affirmed. It is so ordered.

CHRISTIANSON, BRONSON, and ROBINSON, JJ., concur.

GRACE, C. J., concurs in the result.