Kelly v. Chicago & Northwestern Railway Co.

1. It was competent for the defendant to appeal from the order of November 30, 1885, before the same was corrected. It did so appeal, and it has the right to have its appeal determined as the order then was, without regard to the subsequent correction thereof. It was so held *338under very similar circumstances in State ex rel. Taylor v. Sup’rs of Delafield, 69 Wis. 264 . The question to be determined on the appeal from that order is, therefore, Are the sixth and seventh findings of fact inconsistent with each other? That they are inconsistent, or, if not so, that they acquit the plaintiff of negligence, seems to us too clear to bo denied or doubted. The sixth finding is that the plaintiff could, by the use of ordinary care and reasonable effort, have remained where she was, or retraced her steps, with safety to herself. She failed to do so, but jumped upon the platform of the' depot and was injured. Yet, notwithstanding her failure to save herself from injury by the exercise of ordinary care, the jury find she was not guilty of any want of ordinary care in leaving the train as she did. The jury may have predicated the seventh finding upon the fact that the plaintiff was suddenly called upon to decide what course she should pursue in the presence of imminent peril, and that it was not negligence on her part that she erred in judgment in deciding upon her course of action. The following remarks of this court in Schultz v. C. & N. W. R. Co. 44 Wis. 638, are peculiarly applicable to this case: “ It is probably true that had the plaintiff gone upon the east side of the track, or into the open space in the side of the coal-house, he would have escaped injury. But it cannot be held that he was absolute^ guilty of negligence because he failed to take one of these methods of escape. He was acting on short notice in the presence of imminent danger. He had no time to calculate chances, or to deliberate upon the means of escape. He was compelled to act .at once, and it would be most absurd and unjust to hold .him negligent because the instinct of self-preservation did .not suggest the most effectual method of escape from the ,peril. The jury might well find (as they did) that he was .not negligent merely because there was a better way of .escape .than that which he chose.”

*339If snob is tbe significance of these apparently conflicting findings, it does not aid the defendant, for in such case, instead of a new trial being ordered, judgment should have gone for the plaintiff. But however that may be, it is impossible to construe the special verdict as finding that the plaintiff was guilty of contributory negligence. It follows that the order of November 30th, as originally entered, ■was most favorable to the defendant, and hence that the defendant has no good reason to complain of it. It must, therefore, be affirmed.

2. Having determined that the order of November 30, 1885, was properly made, it necessarily follows that the defendant was not injured by the subsequent correction of that order.

It is claimed on behalf of the defendant that the court had no power to amend the order after the appeal therefrom and the return to this court. We think this position cannot be maintained. The appeal from an order does not necessarily take from the circuit court jurisdiction over the subject matter thereof. Proceedings upon an appealed order may be stayed on certain conditions prescribed by statute (E. S. sec. 3060), but no such procedure was had upon the appeal from the original order of November 30, 1885, and the case comes within the provision of the same section to the effect that the appeal shall not delay the execution of the order. It is quite immaterial that the original order was returned to this court, for it still remains of record in the circuit court. E. S. sec. 742. We conclude that the court had jurisdiction to correct the order to make it correspond with the order which the court actually announced.

Eor the above reasons the amendatory order must also be affirmed.

By the Court.— Both orders appealed from are affirmed.