#### Morey, by guardian *ad*litem, Appellant, vs. Lake Superior Terminal & Transfer Company, Respondent.

*April 10*

May *2, 1905.*

Res ad judicata: *Railways: ’Negligence: Personal injuries: Grossing accidents: Pleading: Proximate cause: Contributory negligence.*

1. On appeal from an order sustaining a demurrer the supreme court is confined to the record and proceedings in the instant case; and where there is nothing in the record to show that it was the same cause of action embraced in a judgment of the supreme court on appeal in another action, there is no question of *res adjudicata*involved.

2. When a complaint charged defendant with ordinary negligence, and then characterized the conduct of defendant’s employees as “reckless, wanton, and unlawful,” without clearly indicating whether or not it was intended to charge an intentional wrong, *149and counsel for both parties assumed that the complaint charged a cause of action for ordinary negligence, it will he so treated.

.3. It appeared from the allegations of a complaint, among other things, that defendant negligently ran its train over a crossing at an illegal rate of speed, that it negligently omitted to give the required signals of warning to persons near or upon the crossing, and that it failed to keep a lookout for the purpose of avoiding collision. It was further alleged that plaintiff, lawfully traveling over a railway crossing at which there were several tracks, exercised the precaution of looking and listening for approaching trains before attempting to pass over the first track; that he so looked and listened while crossing over the second track through an opening .between freight cars which obstructed his view of the crossing; that as he emerged from between the cars and was at a point fourteen feet from the track on which the train struck him, he looked to the' west for a distance of half a block to a block and saw no moving train and heard no noise or signal or warning; that he turned and looked to the east to see if any train or engine was approaching, and, while making this observation, proceeded on his course to a point between three and four feet from defendant’s track, when he again turned and looked to the west, and saw a train, distant about 125 feet, coming toward him at a high and dangerous rate of speed; and that such fast and perilous running of the train and its sudden approach without warning so . frightened him as to produce unconsciousness and consequent helplessness, which caused him to fall on the ground toward the track, and to be injured. *Held,*that the consequences of the alleged wrongful conduct of defendant were not of such an extraordinary and unusual character that they should be ruled as not within the range of probabilities in the affairs of life, and that the facts stated in the complaint were sufficient to constitute actionable negligence.

4. In such case it cannot be said, as matter of law, that plaintiff was guilty of contributory negligence.

5. In actions for negligence it is not required that the “specific” injury or “such” injury as is complained of was or ought to have been specifically anticipated as the natural and probable consequence of the wrongful act. It is sufficient if the facts and circumstances are such that the consequences attributable to the wrongful conduct charged are within the field of reasonable anticipation, and that such consequences might be the natural and probable result thereof, though they may not have been specifically contemplated or anticipated by the person so causing them.

*150Appeal from an order of the superior court of Douglas county: Chaeles Smyth, Judge.

*Reversed.*

Tbis is an action to recover damages for personal injuries. The defendant demurred to the complaint upon tbe ground that it did not state facts sufficient to constitute a cause of action. It is alleged that the defendant is a corporation organized under the laws of this state and operating a railroad in the city of Superior; that plaintiff, a boy of the age of twelve years at the time of the accident, did then reside and now resides in the city of Superior; that defendant’s railroad tracks run east and west within the city, between Eighth and Ninth streets and across Cummings, Baxter, and L’amborn avenues, near to and directly south of the Chicago, St. Paul, Minneapolis & Omaha Railway Co2npany’s tracks. The complaint, in describing the tracks across the avenues in question,, states that the most northerly track runs parallel to and near Eighth street, designated as Omaha track No. 1; about twenty feet south of and parallel to this track is Omaha track No. 2; about seven feet south of this track is Omaha track No. 3; about seven feet south of this track lies defendant’s track, designated as Terminal track No. 1; and about seven feet south of this is defendant’s Terminal track No. 2. The avenues are alleged to be about 300 feet apart. Baxter avenue lies midway between Cummings avenue on the west and Lambom avenue on the east. The complaint states that a coal shed extending from Baxter to Lambom avenue is located north of Omaha track No. 1; that between Omaha track No. 1 and Omaha track No. 2, and west of and abutting on Baxter avenue, there is a dwelling-house; that between Omaha track No. 2 and Omaha track No. 3, between Baxter and Lamborn avenues, there is a lumber yard with sheds; and that Omaha track No. 2 had freight or box cars upon it at the time of the accident, covering the whole track from Cummings avenue to Lamborn avenue, with an opening for the crossing on Baxter avenue. It is averred that as *151plaintiff, going toward the south to his home at the time in question, approached the crossing on Baxter avenue, the coal shed, dwelling-house, lumber and sheds, and the box cars on Omaha track No. 2 completely shut off and obstructed his view of defendant’s Terminal track No. 1 until he had passed the box cars on Omaha track No. 2. The complaint further states that at about the hour of 11 o’clock in the forenoon of September 14, 1901, plaintiff walked along Baxter avenue, reached this crossing from the north, and attempted to cross over the tracks; that when he approached the crossing he was unable to look east or west over defendant’s Terminal track No. 1 on account of these obstructions, but that he listened for signals by whistle or ringing of bells, and for train noises, which he alleges could have been heard if given or made; that he heard no noise or signals, and then proceeded south on the avenue to cross the tracks; that, when he emerged from between the box cars on Omaha track No. 2, he looked to the west along Omaha track No. 3 and defendant’s Terminal track No. 1, and had a clear view of from one half of a block to a block, and he saw no train or engine within this distance approaching over either track, and that he listened and heard no train or bells or whistle; that he then turned to the east to look for approaching trains or engines in that direction, and proceeded on his walk southward until he reached a point about midway between Omaha track No. 3 and defendant’s Terminal track No. 1, this occupying only a few seconds in time; that he heard no noise or signal of an approaching train from either direction; that he then and there stopped, and again turned to look to the west, when about 125 feet west he suddenly saw a train coming toward him on defendant’s Terminal track No. 1 at the high and unlawful speed of about twenty miles per hour, without-having' given any signal by ringing the bell or blowing the whistle; that, on account of not having been warned of its sudden approach at such a frightful and dangerous rate of speed, he *152became shocked with fear, producing unconsciousness and loss of control over his actions, which caused him to fall to the ground toward the track; and that as he fell his left leg and foot were placed across the north rail of defendant’s track, were struck by the train, and so injured as to necessitate an amputation. The court sustained the demurrer to the complaint. This is an appeal from the order.

Eor the appellant there was a brief by *Samuel A. Anderson*and *Orownhart & Foley,*and oral argument by *Mr. Am derson.*

For the respondent there were briefs by *J. A. Murphy*and *Heber McHugh,*and oral argument by *Mr. McHugh.*

SiebecKER, J.

It is strenuously urged by the defendant that this action cannot be maintained, because the cause of action pleaded is covered and concluded by a judgment of this court on an appeal in a former action, and that therefore the rule of *res adjudícala*applies to all questions involved in this case. This action is wholly independent of and in no way connected with the other and former action referred to. Nothing in the case shows that it is the same cause of action as is embraced in the judgment so relied on. It appears that this is an original action, which has not been before this court, and that it has never been prosecuted to judgment in the trial court or in this court. On this appeal we are confined to the record and pi’oceedings in this case, and therefore no question of *res adjudicada*is involved.

In stating the facts the pleader employed language which somewhat confuses the purpose of the complaint. The terms employed charge the defendant with ordinary negligence in the management and conduct of its business in running the train in question, and then characterizes the conduct of the persons in charge of the engine as “reckless, wanton, and unlawful,” without clearly indicating whether or not it is intended to charge an intentional wrong. This form of *153pleading bas been tbe subject of discussion in tbe recent ■cases of *Wilson v. Chippewa Talley E. R. Co.*120 Wis. 636, 98 N. W. 536; *Turtenwald v. Wis. L. I. & C. Co.*121 Wis. 65, 98 N. W. 948, and *Rideout v. Winnebago T. Co.*123 Wis. 297, 101 N. W. 672, and been beld to be improper and open to a motion for indefiniteness. It seems tbat it was intended to state but one cause of action, and, in determining tbe question raised by tbe demurrer, it is therefore necessary to declare wbat cause of action is pleaded. Counsel for both parties bare assumed tbat tbe complaint charges a cause of action for ordinary negligence. This construction, under tbe above cases, precludes all claim tbat.it states a cause of action for a wilful injury, and we shall so treat it.

It is contended tbat under tbe facts stated in tbe complaint it appears as a matter' of law tbat tbe negligence charged was not tbe proximate cause of tbe injury. Tbe specific grounds of negligence charged are tbat defendant negligently ran its train over tbe crossing at an illegal rate of speed; tbat it negligently omitted to give tbe required signals by ringing tbe bell or blowing tbe whistle to give' warning to persons near or upon tbe crossing; and tbat in running its train across tbe street in question it negligently failed to keep a lookout for tbe purpose of avoiding collision with persons or vehicles using tbe same. Liability is asserted under these facts upon tbe ground tbat such acts of negligence caused tbe plaintiff to become unconscious and helpless from fright, at tbe unexpected and sudden danger, and tbat such negligence, through this unconsciousness and helplessness, produced tbe injuries complained of. Since it must be beld tbat tbe complaint alleges a cause of action for ordinary negligence only, we cannot perceive bow, in any aspect of tbe situation, tbe alleged failure to keep a proper lookout could be found to be tbe proximate cause of tbe injury, in view of tbe claim tbat plaintiffs helpless condition and consequent injury were caused bj- tbe unlawful speed of tbe train and tbe failure to *154give Mm any warning of its sudden approach. Tbe allegations of negligence upon this subject are not essential to tbe cause of action alleged and upon wbicb plaintiff relies. Tbe failure to give signals at tbe crossing of tbe approach of tbe train, and tbe running of tbe train at an unlawful rate of speed within tbe city, are recognized by tbe decisions of this court as negligent management of defendant’s business. See *Brown v. C. & N. W. R. Co.*109 Wis. 384, 85 N. W. 271; *Williams v. C., M. & St.*P. *R. Co.*64 Wis. 1, 24 N. W. 422; *Hoye v. C. & N. W. R. Co.*62 Wis. 666, 23 N. W. 14; *Eilert v. G. B. & M. R. Co.*48 Wis. 606, 4 N. W. 769; *Bower v. C., M. & St. P. R. Co.*61 Wis. 457, 21 N. W. 536. Tbe question is, Do these alleged wrongful acts constitute actionable negligence? Tbe defendant’s demurrer challenges such a claim, and avers that such negligence was not tbe proximate cause of tbe injury, for tbe reason that a person of ordinary intelligence and prudence could not reasonably be held to foresee that a personal injury to another might probably follow from such alleged negligent conduct. A discussion of what constitutes proximate cause in negligence cases has been fully covered by former decisions of this court. See *Kellogg v. C. & N.*W. *R. Co.*26 Wis. 223; *Atkinson v. Goodrich Transp. Co.*60 Wis. 141, 18 N. W. 764; *Deisenrieter v. Kraus-Merkel M. Co.*97 Wis. 279, 72 N. W. 735; *Meyer v. Milwaukee E. R. & L. Co.*116 Wis. 336, 93 N. W. 6; *Fehrman v. Pine River,*118 Wis. 150, 95 N. W. 105. These cases are to tbe effect that “tbe efficient cause [is] that wbicb acts first, and produces tbe injury as a natural and probable result, under such circumstances that be who is responsible for such cause, as a person of ordinary intelligence and prudence, ought reasonably to foresee that a personal injury to another may probably follow from such person’s conduct.” *Deisenrieter v. Kraus-Merkel M. Co., supra.*Such responsible causation is not dependent on time, distance, or a mere succession of events. It is tbe cause that acts first, and, either *155immediately or through other iuterveuiug agencies put in operation by it, produces the final result. From this it follows that if any event is produced by independent intervening circumstances, not put in operation by the wrongful acts alleged as the cause of an injury, no legal responsibility attaches, for the reason that “whenever a new cause [independent intervening circumstance] intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, *which could not have been foreseen by the exercise of reasonable diligence by the*wrongdoer, and except for which the final injurious consequences would not have happened, then such injurious consequences must be deemed too remote to constitute the basis of a cause of action.” Atchison *T. & S. F. R. Co. v.*Stanford, 12 Kan. 354; *Schumaker v. St. P. & D. R. Co.*46 Minn. 39, 48 N. W. 559; *Borchardt v. Wausau B. Co.*54 Wis. 107, 109, 11 N. W. 440. Upon this question defendant’s argument in the instant case is that, in the light of the attending circumstances, the sudden fright of plaintiff and his consequent helpless condition, if produced by the unlawful and reckless approach of the train, was a consequence which could not reasonably have been foreseen and anticipated by a person of ordinary intelligence and prudence, and that it must follow as a matter of law that no actionable negligence is charged. We cannot so regard the situation presented by the facts alleged in the complaint. The complaint avers that plaintiff was lawfully traveling over the crossing; that he exercised the precaution of looking and listening for approaching trains before attempting to pass over the first track; that he so-looked and listened while crossing over the second track through an opening between freight cars which obstructed his view of the crossing; that as he emerged from between the cars and was at a point about fourteen feet from the track where the train struck him, he looked to the west for a distance of from one half of a block to a block and saw no mov-*156mg train and beard no noise or signal or warning by whistle ■or bell of an approaching train; that he turned and looked to the east to see if any train or engine was approaching, and, while making this observation, proceeded on his course to ■a point between three and four feet from defendant’s track, when he again turned and looked to the west, and saw a train, distant about 125 feet, coming toward him at a high and dangerous rate of speed; and that such fast and perilous running of the train and its sudden approach without warning so frightened him as to produce unconsciousness and consequent helplessness. Are these alleged consequences of the wrongful conduct of defendant clearly of such an extraordinary character that it must be said as a matter of law that they could not reasonably have been foreseen and anticipated by a person of ordinary intelligence and prudence in the light of the attending circumstances ? This must be answered in view of the common knowledge on the subject acquired from experience in life under like and similar circumstances. We are persuaded that they are not of such an ■extraordinary and unusual character that they should be held as not within the range of probabilities in the affairs of life, and that the facts stated in the complaint axe sufficient to -constitute actionable negligence.

The suggestion that it is beyond reasonable probability that the *specific*injury might have been anticipated does not meet the question. It is not required that the “specific” injury or “such” an injury as is complained of was or ought to have been specifically anticipated as the natural and probable consequence of the wrongful act. It is sufficient if the facts and -circumstances are such that the consequences attributable to. the wrongful conduct charged are within the field of reasonable anticipation; that such consequences might be the natural and probable results thereof, though they may not have been specifically contemplated or anticipated by the person so «causing them. *Mauch v. Hartford,*112 Wis. 40, 87 N. W. *157816; *Meyer v. Milwaukee E. R. & L. Co.*116 Wis. 336, 93 N. W. 6; *Deisenrieter v. Kraus-Merkel M. Co.*97 Wis. 279, 72 N. W. 735, and cases cited in opinion; *Atchison, T. & S. F. R. Co. v. Stanford,*12 Kan. 354; *Campbell v. Still*water, 32 Minn. 308, 20 N. W. 320; *Motey v. Pickle M. & G. Co.*74 Fed. 155, 20 C. C. A. 366.

Tbe question whether plaintiff was guilty of a want of ordinary care, under the facts and circumstances alleged, which contributed to produce the injury complained of, is one for the jury. The allegation that plaintiff stopped to look and; listen before attempting to cross the tracks and again while-in the act of crossing over the tracks, and that he saw no train approaching when he last looked, and heard no noise or • signal of an approaching train or engine until he suddenly saw the train approach under the circumstances alleged, which caused him to fall and become helpless through defendant’s wrongful conduct, presents a situation of which we cannot say, as matter of law, that his conduct is so variant from that of ordinarily prudent persons as to constitute negligence *per se. Bohn v.*Racine, 119 Wis. 341, 96 N. W. 813.

*By the Court.*— The order appealed from is reversed, and' the cause remanded with directions to enter an order overruling the demurrer, and for other proceedings according to-law.