Kusterer vs. The City of Beaver Dam.

clearly founded upon the principle that the notice to the supervisors was intended by the law as a notice to the town for the purpose of charging the town with a liability as such. An allegation, therefore, of due notice to the town was sufficient without stating how the notice was given. So, in the case at bar, the notice to the street commissioner of the defendant is a notice required to be given to the city for the purpose of charging it with a liability as such city, and for no other purpose; and the general allegation that the city had due notice. is sufficient upon demurrer. If the defendant city wanted to raise the question whether any other notice than the one required to be given by the statute would render the city liable for the injury, it might have made a motion requiring the plaintiff to make his complaint more definite and certain in this respect by setting out in what way or manner the city had notice of the defect; but it cannot raise that question by a general demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action.

As we hold that the complaint sufficiently charges the notice to the city which the charter requires should be given before it shall become liable for damages claimed by the plaintiff, it is wholly unnecessary to pass upon the question of the constitutionality of the provision of the charter relied upon by the learned counsel for the city.

By the Court. The order of the county court is affirmed, and the cause remanded for further proceedings according to

law.

Jucker, Administrator, vs. The Chicago & Northwestern R'y Co.

JUCKER, Administrator, vs. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY.

March 30-April 19, 1881.

(1) Court and jury: Nonsuit. (2) "Proximate cause.' (3) Case stated: Evidence sufficient to take case to jury.

1. In an action at law, where there is any evidence upon which the jury would 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 twentytwo months old, and previously in good health; that defendant's engine struck the child, and threw it into the air and about fifteen 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.

APPEAL from the Circuit Court for Fond du Lac County. Action for an injury to an infant child, causing its death. Plaintiff appealed from a judgment of nonsuit.

The evidence in plaintiff's behalf is sufficiently stated in the opinion.

For the appellant there was a brief by Shepard & Shepard, and oral argument by T. R. Shepard.

For the respondent there was a brief by C. A. & A. B. Eldredge, and oral argument by A. B. Eldredge.

Jucker, Administrator, vs. The Chicago & Northwestern R'y Co.

ORTON, J. The rule laid down in Improvement Co. v.
Munson, 14 Wall., 448, cited by the learned counsel of the re-
spondent, 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 evi-
dence
upon which the jury can properly proceed to find a ver-
dict 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 suffi-
cient to justify the jury in finding that the company was neg-
ligent, and that the mother of the child used ordinary care,
under the circumstances, to guard and restrain it from stray-
ing 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 plausi-
bility 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

Jucker, Administrator, vs. The Chicago & Northwestern R'y Co.

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 a 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 events subsists between one antecedent and one consequence. Ordinarily, that condition is usually termed the cause whose share in the matter is the most conspicuous, 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. Railway

Jucker, Administrator, vs. The Chicago & Northwestern R'y Co.

Co., 26 Wis., 223, that "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 Railroad 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. City 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 one year and ten 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 fifteen 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 fifteen 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