Ransom v. Chicago, St. Paul, Minneapolis and Omaha Railway Company. The statute provides that "before crossing any highway, except in cities and villages, with any locomotive, the whistle shall be blown eighty rods from such crossing, and the engine bell rung continuously from thence until the highway shall be crossed by the locomotive." R. S., § 1809. Under this statute no negligence or breach of duty can be imputed to the defendant because of the speed of the train. The case made by the complaint is that the whistle was not sounded, or the bell rung, when the train approached the crossing, and that the failure to do so was the proximate cause of the injuries complained of.

It is doubtless true that unless the defendant owed the duty to the plaintiff's wife and children to blow the whistle and ring the bell, the complaint fails to state a cause of action.

But if it owed them such duty, then the complaint states a cause or action. These propositions are illustrated by some of the cases cited by counsel for the defendant. Thus it was held in Harty v. C. R. Co. of N. J., 42 N. Y. 468, that the sole object of a statute of New Jersey, similar to ours, was to protect persons travelling the highway at or near the crossing, and that the railroad company owed no duty to a person injured by a passing train, when such a person was on the track near a crossing (although lawfully there), to blow the whistle or ring the bell. Hence it was held that a failure to give the signals required by the statute did not render the railroad company liable for such injuries. To the same effect is O'Donnell v. P. & W. R. Co., 6 R. I. 211.

The controlling question in this case is, therefore, did the defendant company owe the duty to the plaintiff's wife, and their children who were with her in the buggy, to give the signals required by the statute of the approach of its train to the crossing?

It was maintained in the argument on behalf of the defendant that the statutory precautions have no application to a person travelling a highway parallel with the railroad, but only to those travellers on the highway who are about to use the crossing. The highway along which plaintiff's wife was driving when her horse became frightened and unmanageable, was substantially parallel with the railroad at the place of the accident, and the complaint does not allege that she intended to or was about to drive across the railroad.

None of the cases cited by counsel to these propositions seem to sustain the doctrine contended for, with the single exception of the

Ransom v. Chicago, St. Paul, Minneapolis and Omaha Railway Company.

case of East Tenn., etc., R. Co. v. Feathers, 10 Lea, 103. The court gave a construction to the statute of that State, which to some extent sustains the position of counsel for defendant. It seems to us that the case was entirely outside the statute, and called for no construction thereof. In that case the facts, as stated by the court, were these: "Plaintiff and his wife were riding horseback from church. The road they chose to travel after crossing the railroad ran along, near, and parallel to the railroad for probably a mile or more. Plaintiff and wife were riding along this road, going east, having passed the crossing from a quarter to half a mile west of where the public road crossed the railroad, when a train approached from the west, going east, the noise of which frightened the wife's horse, which threw her and injured her severely. From this statement, although somewhat obscure, it is understood that the injured person was more than a quarter of a mile from the crossing when her horse became frightened and threw her, and it is a fair inference from the statement that the train of cars was an equal distance therefrom at the same time, and had passed the crossing. The statute required the signal to be sounded when the locomotive was approaching, and one-fourth of a mile from the crossing. Hence at the place of the injury, the railroad company was under no statutory obligation to sound any signal. The court held that it was under no such obligation to the plaintiff and his wife. Under the facts, no good reason is perceived why it might not have been held as well that the company was under no such obligation to any person.

In the other cases cited by defendant's counsel, either the persons injured were not upon the highway when injured, or being upon the highway, they were charged with contributory negligence. The New York and Rhode Island cases above cited, and also Holmes v. Cent. R. Co., 37 Ga. 593, and Elwood v. N. Y. C. & H. R. R. Co., 4 Hun, 808, belong to the former class. The cases of Fletcher v. A. & P. R. Co., 64 Mo. 484, and Haas v. G. R. & I. R. Co., 47 Mich. 401, belong to the latter class.

On the other hand, as we have already seen, the case of Harty v. C. R. Co. of N. J., 42 N. Y. 468, holds that the statute was enacted for the protection of persons travelling the highway at or near the crossing. It does not exclude from the protection of the statute travellers on the highway who do not intend to use the crossing. In the opinion by EARL, C. J., the following language

Ransom v. Chicago, St. Paul, Minneapolis and Omaha Railway Company. of ALLEN, J., in People v. N. Y. C. R. Co., 25 Barb. 199, is quoted approvingly: "The hazards to be provided against were twofold: (1) The danger of actual collision at the crossing; and (2) that of damage by the frightening of teams travelling upon the public highway" near the crossing. In the latter case, the court was considering a statute of New York in principle precisely like ours. The track of the railroad crossed the highway at an elevation of fifteen feet above it. Hence in that case there was no possibility of a collision. Yet the court held that persons travelling the highway in the vicinity of the crossing were within the protection of the statute, and that the railroad company owed them the duty to ring the bell and blow the whistle, as required by the statute. Cases elsewhere give support to the same doctrine. See Wakefield v. C. & P. R. Co., 37 Vt. 330; Pennsylvania R. Co. v. Barnett, 59 Penn. St. 259; 1 Thomp. Neg. 352, and cases cited. The present case rests upon the same principle, for it can make no difference whether the traveller upon the highway passes under the railroad or on a parallel road in the vicinity of the crossing. The danger of collision is eliminated from both cases, and the danger of teams becoming frightened is common to both.

We think the construction thus given to the New York statute by the courts of that State is most reasonable and sensible, and is sustained by the weight of authority. We do not hesitate to adopt it as the true construction of our own statute. It must be held therefore that upon the case made by the complaint, the defendant company owed the duty to the plaintiff's wife and children to give the signals required by the statute when its locomotive and train were approaching the crossing. Its failure to do so was negligence; and if the plaintiff can satisfy the jury that it did so fail, and that such failure was the proximate cause of the injuries complained of, he ought to recover.

We conclude that the complaint states a cause of action, and the demurrer thereto should have been overruled.

Order reversed, and cause remanded for further proceedings according to law.

Reversed and remanded.

NOTE BY THE REPORTER.-- See Favor v. Boston & Lowell R. Co., 114 Mass. 350; s. c.. 19 Am. Rep. 364.

In Harty v. Cent. R. Co. of N. J., 42 N. Y. 468, the statute in question required the railroad company to ring the bell or sound the whistle at least three

VOL. LI-91

McNamara v. Village of Clintonville.

hundred yards from the crossing of a highway upon the same level. Although the court did say, as quoted in the principal case, that the signal was designed "to protect persons travelling upon the highway at or near the crossing," yet it also said: "Railroad companies were not required by this law to ring the bell nor sound the whistle when the highway passed along the railroad," etc.

MCNAMARA V. VILLAGE OF CLINTONVILLE.

(62 Wis. 207.)

Damages—proximate cause — predisposition to disease.

Where personal injuries proximately arise from another's negligence, the wrongdoer is liable for the actual damage although it may have been enhanced by a predisposition to disease on the part of the injured person.

A

*

CTION for personal injuries by negligence. The opinion states the point. The plaintiff had judgment below.

Finch & Barber, for appellant.

J. F. Burke and E. P. Smith, for respondent.

CASSODAY, J. [Omitting other points.] Exception is taken because the court charged the jury in effect that if they found for the plaintiff then no deduction should be made from the damages sustained by reason of his disability having been prolonged in consequence of a predisposition to inflammatory rheumatism, and because the court refused to charge in effect that the plaintiff could not recover if the injury was the result of the disease, and not the direct and proximate result of the defendant's negligence. There is no evidence that would warrant the jury in finding that the disease interfered in the least with the plaintiff's powers of locomotion, or in any way contributed to his stepping or falling from the sidewalk at the time and place in question. The jury have found in effect that there was no negligence on the part of the plaintiff contributing to the injury, and hence that it was the direct and proximate result of the defendant's negligence alone.

The presence of the disease may have aggravated and prolonged the injury and correspondingly increased the damages. The jury *To same effect, Terre Haute, etc., R. Co v Buck (96 Ind. 346), 49 Am. Rep. 168.

McNamara v. Village of Clintonville.

were expressly authorized to include in their verdict such increased or additional damages, and we must assume that they did. Was this error? Under the repeated decisions of this court, we must answer this question in the negative. Oliver v. La Valle, 36 Wis. 592; Stewart v. Ripon, 38 Wis. 584; Brown v. C., M. & St. P. Ry. Co., 54 Wis. 342; s. c., 41 Am. Rep. 41. In one of these cases the plaintiff was allowed to recover increased damages by reason of an organic tendency to scrofula in his system, and in each of the others by reason of a miscarriage in consequence of the injury. In the Brown case the distinction was made between actions for tort, where the wrong-doer is held liable for all injuries naturally resulting directly from the wrongful act, though unforeseen, and actions for the breach of contract, where the damages are limited to such as "arise naturally from such breach of contract itself, or from such breach committed under circumstances in the contemplation of both parties at the time of the contract," as in Flick v. Wetherbee, 20 Wis. 392; Richardson v. Chynoweth, 26 Wis. 656; Candee v. W. U. Tel. Co., 34 Wis. 471; s. c., 17 Am. Rep. 452; Walsh v. C., M. & St. P. Ry. Co., 42 Wis. 23; s. c., 24 Am. Rep. 376; Hill v. Chipman, 59 Wis. 218; Hadley v. Baxendale, 9 Exch. 341; Hobbs v. L. & S. W. Ry. Co., L. R., 10 Q. B. 111; Horne v. Midland Ry. Co., 8 C. P. Div. 131; Jones v. George, 56 Tex. 149; s. c., 48 Am. Rep. 280; Bagley v. Cleveland R. M. Co., 21 Fed. Rep. 159.

The rule applicable to contracts thus quoted is taken from the opinion of the court in the recent case of Hamilton v. Magill, L. R., 12 Ir. 202, and is there said to be a more accurate statement than is found in Hadley v. Baxendale. To the same effect are the notes to that case in Shirley Lead. Cas. 227-230, and Harvey v. C. & P. R. R. Co., 124 Mass. 425; s. c., 26 Am. Rep. 673. See also the late case of McMahon v. Field, 7 Q. B. Div. 595, where the plaintiff recovered on contract for the injury to his horses, who caught cold from unnecessary exposure to the weather. In that case Hobbs v. L. & S. W. Ry. Co., supra, is severely criticised and narrowly limited, if not entirely overruled. The distinction taken in the Brown case has been recognized in several of the more recent cases, and in some of them that decision is expressly sanctioned. Baltimore C. P. Ry. Co. v. Kemp, 61 Md. 74, 619; s. c., 48 Am. Rep. 124; Cincinnati, H. & I. R. R. Co. v. Eaton, 94 Ind. 474; s. c., 48 Am. Rep. 79; Ehrgott v. Mayor, 96 N. Y. 281; s. c., 48 Am. Rep. 622; Tice v. Munn, 94 N. Y. 621; Murdock v. B. & 4. R. Co., 133