Ballou v. Chi. & Nw. Ry. Co.

• Decision Date: 07 February 1882
• Citation: 54 Wis. 257,11 N.W. 559
• Parties: BALLOU, ADM'X, v. CHICAGO & NORTHWESTERN RY. CO.
• Court: Wisconsin Supreme Court

54 Wis. 257

11 N.W. 559

BALLOU, ADM'X,

v.CHICAGO & NORTHWESTERN RY. CO.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from circuit court, Winnebago county.

At the time of his death the intestate was an employe as brakeman on a regular freight train of the defendant, being run and operated between Oshkosh and Fort Howard, under the conductorship of the witness Mr. Sykes, and had been in such employ for three years. On the day previous to his death, freight car No. 57, in question, belonging to the Green Bay & Minnesota Railroad Company, was taken by the train upon which deceased was employed from that company at Fort Howard Junction, loaded with charcoal, and drawn to Fort Howard, from where it was taken in the train on the return trip to Depere, at which place it was consigned, and hence was there left. On the return of this train from Oshkosh the next day it stopped at Depere, and, leaving the most of the train on the main track, the engine No. 29 and tender passed onto the side track or switch, and the deceased hitched this car No. 57 onto the front of the engine, and then the engine backed out onto the main track and started to get another car, going up to near Bolles' side track with No. 57 attached, and the deceased riding upon the top of it, when it stopped, and the deceased climbed down the ladder in question at the north end of this No. 57, (being the end in the direction in which it was going,) and, turning the switch, gave the ordinary signal with his hand to the engineer to go ahead, and said, “Go ahead, Fred!” which he did; and then while the engine, together with this car No. 57, was moving at the rate of two or three miles an hour, the deceased, being upon the ground, grabbed one of the rounds of this same ladder with his left hand, and then grabbed and reached another round with his right hand, and giving a spring struck the bumper with his left foot, when one of the slats or rounds of the ladder, about seven feet from the ground, which he had hold of, gave away, and he fell right backward onto the track, and this car No. 57 ran over him and killed him instantly. The distance from where the car stood when the signal was given, and the place where it was going to get the other car, was some eight or ten rods, and the surface of the ground in the space between was level, except the tracks, and there was no difficulty in walking over it. The slat or round which gave away was about three feet long, two inches wide, and one inch and a quarter thick at one end, and one inch and three-eighths at the other end, and made of oak timber.

The ladder consisted of four slats or rounds of this size, fastened at each end with screw bolts, onto oak stanchions standing upright near the middle of the end of the car, and forming a part of the end of the car, as timbers or studding, the lower ends being in stake holes, as it had previously been a flat car. The bolts were three-eighths of an inch or seven-sixteenths of an inch thick; and the one that came out only passed into the stanchion about one-half of an inch of the threads, whereas it should have passed in to the extent of one and a half or two inches. The bolt did not break, but pulled out of the stanchion, with the threads of the screw filled with the wood. A small portion of stanchion, at the place where the screw went in, was decayed, and another hole indicated that a screw had previously broken of. This decay near the screw and the hole were were concealed from observation by the slat or round while the same was in place and before it gave away. The same train, with the same brakeman, had been in the habit of handling the same car, No. 57, once or twice a week during the year previous. The accident occurred between 3 and 4 o'clock in the afternoon of a nice, bright day. The brake on this car, No. 57, was at the top of the car, near the ladder in question; but at the time there was nothing requiring the deceased to go onto the car, as he could easily walk the short distance necessary to couple on the other car.

The deceased had frequently ascended and descended this ladder in question, and others on other coal cars of the Green Bay & Minnesota road, constructed the same way as this, and having the same general appearance, and was familiar with the car and the ladder. The train on which the deceased was so employed had for a long time been in the habit of landing almost daily other foreign cars having ladders at the end, including cars from the Baltimore & Ohio Railroad, the Lake Shore & Michigan Southern, the New York Central, the Hudson River, the Grand Trunk, the Pittsburgh & Fort Wayne, the Chicago, Rock Island & Pacific, and other railroads; and no injury had previously been known to occur from such ladders or from any defect in such ladders. At the close of the testimony on the part of the plaintiff the defendant moved for a nonsuit on the ground that it appeared by the testimony of every witness that when the ladder, slat, or round was screwed upon the stanchion, no person looking at the head of the bolt, seeing it in the position in which it was, would have supposed, or been charged with any reason to suppose, that it was other and different from what it appeared to be, and from what ladders of similar description, bolted in a similar manner to that, would be presumed to be, and would have been presumed to have been constructed originally. The court granted the motion substantially upon the grounds stated, and in doing so the trial judge, among other things, said: “I understand the testimony of the plaintiff that the defect which caused this injury was the drawing out of the screws which held the rung upon the stauchion. All the witnesses agree that substantially there was nothing externally that would indicate that the bolt was not of the ordinary depth or length that is used in such places, to-wit, three inches to three and a half; that the head would indicate the diameter. All that have said anything upon the subject have given the opinion, and all the experts, that had the bolt been of such a length as is usual in such places it would not have pulled out, in their judgment. Clearly and fairly, that being so, the evidence to me shows conclusively that no degree of care that the railroad would be called upon to exercise would have discovered the defect, to-wit, the drawing out of the bolt.”

From the judgment of nonsuit thereupon entered this appeal is brought.

Gabe Bouck, for appellant.

W. F. Vilas, for respondent.

CASSODAY, J.

The gist of the complaint is that the intestate came to his death by the wrongful act, negligence, and default of the defendant, and without any fault, carelessness, or negligence on his part. The cause of the action accrued prior to the repeal of section 1816, Rev. St., and was expressly saved by the repealing act, (chapter 232, Laws 1880,) and hence must be governed by that section. The intestate was, at the time he was killed, a servant of the defendant, and the only question to be determined is whether his death was caused by reason of the negligence of any other agent or servant of the defendant, without contributory negligence on the part of the deceased. Gumz v. Ry. Co. 52 Wis. 676.^a1 Clearly, under that section, the burden was upon the plaintiff of proving that such death was by reason of the negligence of some “other agent or servant” of the defendant. There is no claim of any negligence on the part of the conductor of the train. There is no claim that the engineer was negligent in starting the engine and car, and running them in the manner and with the speed he did. On the contrary the evidence is undisputed that he started these in pursuance of the signal and command of the deceased. Manifestly the only defect which at all contributed to the injury was the shortness of the bolt fastening the slat or round in question to the standard or stanchion.

Was the defendant guilty of negligence by taking that car loaded with charcoal from another railroad and handling it as it did? A very careful reading and rereading of the printed case forces upon us the conviction that the learned circuit judge's summary of the evidence above given, as to the defendant's negligence, is substantially correct. It is true, the evidence tended to show that the head of such bolts indicate their size, and that the head of the bolt in question indicated that it was three-eighths or seven-sixteenths of an inch thick, whereas such bolts were ordinarily one-half an inch thick. But the difference was very slight, and, as stated by the trial judge, there was no breakage of the bolt, but it pulled out solely by reason of being too short, and hence not having penetrated the stanchion to a sufficient depth. From the evidence it is clear that had the penetration been of sufficient depth it would not have broken nor pulled out. It is true that one of the witnesses, who had once been discharged from the defendant's employ, and testified with an apparent bias, did say, in one portion of his testimony, that the head of the bolt indicated that it was too short, but after a rigid cross-examination he was compelled, reluctantly, to admit, what all the other witnesses most clearly state, and what reason fully corroborates, and that is, that no one could tell from simply looking at the head of the bolt what its length was.

It is true, one of the witnesses states that he examined the other rounds in the ladder on this car, and the bolts, and that they seemed to be half-inch bolts. It does not appear, however, that the heads of such other bolts were any larger than the one in question. On the contrary, it was stated on the argument, without any dissent, that the evidence indicated that the heads of the bolts were apparently alike. This we assume to be correct, especially as it was stated without contradiction that much of the evidence was not printed. But even if there was a slight difference in the size of the bolts,...