Steller v. Chicago & Northwestern Railway Co.

• Citation: 1 N.W. 112,46 Wis. 497
• Parties: STETLER v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY
• Decision Date: 25 March 1879
• Court: United States State Supreme Court of Wisconsin

1 N.W. 112

46 Wis. 497

STETLER v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY

Supreme Court of Wisconsin

March 25, 1879

APPEAL from the Circuit Court for Sauk County.

Judgment reversed and the cause remanded a new trial.

For the appellant, there was a brief by Smith & Lamb, and oral argument by Mr. Lamb:

1. The constitution and laws of Illinois, in evidence, as construed by the courts of that state, showed that defendant could not refuse to run its trains to the ice-houses and haul out ice for the owners; that this piece of road was as to defendant a public highway, over which it was compelled by law to go with its engines and cars to haul property from the warehouses of the owners. 10 Ch. Leg. News, 372. The Wisconsin statute allows the railroad company to repair the road in such a case (R. S. 1878, sec. 1802); but the law of Illinois gave defendant no such authority. Possibly, if parts of the track had been wholly gone, or its condition had been such as to show clearly beforehand that it was unfit for use, defendant might not have been compelled to go on with its trains. But such was not the fact. Plaintiff, with the crew of a freight train and one hundred men to load trains, had been running back and forth for two full days, and discovered no defect in the road until the accident on the third day. There is no pretense that the road was not originally well-built and perfect in all respects. Defendant, therefore, had no right to refuse to put its trains on this piece of road. Those decisions which require railroad companies, when they own their roads, cars and appurtenances, to furnish them for their employees originally in good and sufficient condition for safe use, and to exercise due care afterwards in keeping them in repair, are clearly inapplicable to such a case as this. Defendant was not insurer of the safety of its employees (Saunders on Negligence, 120-128); and employees living and working in Illinois must be held to have known the constitution and laws of that state, and defendant's duty under them to run its trains on this road, and to have assumed the risks attending the business under those conditions. There is a class of cases where one party owns a railroad track or other property to be operated by machinery propelled by steam or other power, and the same is operated by another party, and where both parties have been held liable for injuries caused by some defect known to both. But the ground on which the liability of the party not owning but only operating the property is placed, is, that while the owners have neglected a duty, as for example in not fencing their railroad, the operator, with full knowledge of that patent neglect, has persistently used the road. P. & R I. Railroad Co. v. Lane, 83 Ill., 448, and cases there cited. But the conclusion to which these cases irresistibly lead, is, that where the duty to keep a road in repair belongs to the owner, and the party operating it has no authority to repair it, and is lawfully required to use it and it is not plainly unfit for use, and such party is operating it only temporarily, and is not shown to have any notice or knowledge of defects, the liability attaches only to the owner of the road, on whom the duty of repair primarily rests. See further, on this point, Mason v Mayer, 49 Ga., 355; Parker v. Renssellaer & S. Railroad Co., 15 Barb., 316, 317; Whitney v. Clifford, ante, p. 138. 2. The act of plaintiff's coemployees in backing the train at the speed proved, had a direct tendency to cause the accident complained of. For such misconduct on their part defendant was not responsible, in the absence of any evidence that it was negligent in employing them or retaining them in its service. C. & A. Railroad Co. v. Rush, 84 Ill., 570; Cooper v. Railway Co., 23 Wis. 668; Priestly v. Fowler, 3 M. & W., 6; Saunders on Negligence, 120-128; Wood's Master & Servant, § 416, and cases there cited. The court therefore erred in refusing to instruct the jury that if they found such management of the train negligent, and that it caused or contributed to the injury, plaintiff could not recover. The rule that a master is not liable to a servant for negligence of a coemployee, is applicable even in cases where the machinery or apparatus may be defective, if the promoting cause of injury is the negligence of the co-servant. Allen v. New Gas Co., L. R., 1 Exch. Div., 251; Bartonshill Coal Co. v. Reid, 3 Macq., 266; Lovegrove v. Railway Co., 16 C. B., N. S., 692; Cotton v. Wood, 8 id. 568; Howells v. Landore Steel Co., L. R., 10 Q. B., 62.

Counsel also contended that the damages were excessive.

J. W. Lusk, for the respondent:

The general rule that a railroad company is liable for an injury to its servant caused by want of repair in the road, or by the defective character or condition of machinery or appliances about which the employee is directed to work, is not questioned by the defendant; but it seeks to establish an exception for which there is no authority. "A public company, like a canal or railway, who are allowed to take tolls, owe a duty to the public to remove all obstructions in the canal or upon the railway, although not caused by themselves or their servants, but by those who are lawfully in the use of the canal or railway, or by mere strangers." "Nor can a railway company excuse themselves from liability for injury to passengers carried over any part of their road, by showing that the particular neglect was that of a servant employed and paid by a connecting road." 1 Redfield on R. W., 602; McElroy v. Nashua & Lowell Railroad Corp., 4 Cush., 400; Railroad Co. v. Barron, 5 Wall., 90. A railway passenger carrier is responsible for the sufficiency of a carriage which it borrows and uses, to the same extent as for its own. Jetter v. N. Y. & H. Railroad Co., 2 Keyes, 154. In Murch v. Concord Railroad Corp., 9 Foster, 9, where a passenger had suffered an injury in attempting to get on the cars of one company while it was using the road of another company, by contract with the latter, through a defect in the construction of such road, it was held that he could not maintain an action against the company owning the road, there being no privity of contract between it and plaintiff; but that the remedy was against the company which was carrying the plaintiff as a passenger.

DAVID TAYLOR, J. EDWARD G. RYAN, C. J., no opinion.

OPINION

The case is thus stated by Mr. Justice TAYLOR:

"Action to recover damages for injuries sustained by plaintiff whilst in the employ of the defendant. The injury occurred whilst the plaintiff as a fireman was assisting in running a train of cars on a short line of railroad [in the state of Illinois], extending from its main track to Crystal Lake, a distance of about one mile. The evidence shows that this short track was built by private persons for the purpose of shipping ice over the defendant's road, and that the owners of the ice-houses at the lake kept the road in repair. It also shows that this track was never used by any other railroad company except the defendant, and that, whenever desired by the men controlling the ice business at the lake, the company sent its cars and engines over the track for the transportation of the ice to market. The proof shows that the plaintiff was directed by the proper officer of the company to go upon the engine of the company as fireman, and assist in running cars in and out over this track; and that whilst he was so engaged, and whilst backing in a train of empty cars from the main track to Crystal Lake, the track gave way, and several cars, and the engine upon which he was engaged as fireman, were thrown from the track, and he suffered severe injuries to his arm, head and other parts of his person.

"The evidence shows that the train which was so thrown from the track consisted of twenty-one empty cars, and that it was being backed over the track at the time at a speed of from ten to twelve miles an hour; it also shows that the immediate cause of the accident was the giving way of the rails at a place where the ties were very defective and rotten, and where there was a short rail in the track.

"The evidence tends to show that some of the officers of the defendant had some knowledge that this side-track was not at the time in a very safe condition, and that the conductor of the train upon which the plaintiff was employed at the time of the accident, was cautioned by the train dispatcher, when sent out to run over such track, to run slow."

The plaintiff recovered in the court below, and the defendant appealed. The learned counsel for the appellant insists that the court below erred in holding that the defendant was liable to the plaintiff for an injury resulting from the insufficiency of the railroad track which it did not own, and was not bound to keep in repair; and secondly, that the court erred in refusing to instruct the jury, "that if they found that negligence of the defendant's employees caused the injury, or contributed to it, the defendant would not be liable," and because, in reply to such request, the judge said he did not think there was any negligence on the part of anybody running that train, "I mean the train hands; that the negligence, if any, was higher up;" and thirdly, that the damages were excessive, and that the verdict should have been set aside, and a new trial granted, for that reason.

1. We do not think the first point well taken. The authorities are quite uniform, that where one railroad company uses the track of another company for the purpose of transporting passengers or property, the company transporting the persons or property is liable for any damages which may be sustained, either by the passengers or by the owners of the property so transported, caused...