Lockwood v. C. & N. W. Ry. Co.

Citation55 Wis. 50,12 N.W. 401
PartiesLOCKWOOD, ADM'R, v. C. & N. W. RY. CO.
Decision Date10 May 1882
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from circuit court, Dane county.

Bashford & Spilde, for appellant.

F. J. Lamb, for respondent.

TAYLOR, J.

This action was brought for the purpose of recovering damages of the defendant company for causing the death of C. W. Lockwood by the negligence of said company, its agents, servants, and employes. The accident which caused the death of the plaintiff's intestate occurred before the repeal of section 1816, Rev. St. 1878, which made a railroad corporation liable for all damages sustained by any agent or servant thereof by reason of the negligence of any other agent or servant, without contributory negligence on his part. The deceased, at the time he received the injury which caused his death, was a brakeman on a freight train of said company, and had been such for some time previously. The accident which caused his death, happened in the city of Madison, near the place where the defendant's track crosses the track of the Chicago, Milwaukee & St. Paul Railway Company, in the east part of said city, at about 10 o'clock of the forenoon, on the twenty-eighth day of November, 1878. It appears, from the undisputed evidence in the case, that the train upon which the deceased was employed at the time was not a regular freight train, but was sent out from Harvard junction to go to Baraboo, in this state; that as it came near the crossing above mentioned, the deceased, whose place was on the forward part of the train, went down the ladder at the front end of the first car, behind the engine and tender, while the train was in motion, and uncoupled the tender and engine from the train, and before he got back upon the top of the car, and before the train stopped, he fell to the ground on the east or right side of the train; that he was not run over by the wheels of the cars, but was in some way crushed and thrown three or four feet east of the track, and when taken up it was found that his back was broken near the lower extremity thereof; that no other bones were broken and no flesh wounds of a very serious nature found. His clothes were considerably torn, and the sole of the shoe on his right foot showed marks of having been crushed by the wheel of the car. It was also established that the forward trucks of the front car, the one upon which the deceased was at the time he fell, were thrown off the track to the west; that the car ran its length or more after the trucks left the track before the train stopped, and that the body of the deceased lay nearly opposite the front end of the second car when the train stopped. At the place where the accident happened the track curved to the west.

Exactly what caused the deceased to fall from the car, or in what way his back was broken, is not made clear from the evidence. The plaintiff in his original complaint alleged the injury to have happened, and the negligence of the defendant, its agents, servants, and employes, which caused the injury, in the following language:

“That at the time the train arrived at said 400-foot post he, the deceased, in the discharge of his duties as brakeman, was required to uncouple the same from the said engine, and for that purpose and in the line of his said employment had descended the ladder in front and on the right-hand side of the first car of said train, and was in a proper position upon said car to uncouple the same from the engine; that after said train had passed said 400-foot post a distance of about 100 feet, the said Charles W. Lockwood, deceased, proceeded, by the order and direction of the defendant, its agents, officers, and servants, to uncouple the said engine from the said train, and did properly uncouple said engine from said train as ordered and directed as aforesaid.

“That immediately thereafter, and without signal or warning, the said engine was recklessly, negligently, and carelessly moved suddenly forward, at the most rapid rate, by the defendant, its agents and servants, upon the same a short distance in advance of said train; that said cars continued to move forward with considerable speed and with great force, and were not brought to a full stop as required by law. By reason of the unlawful, reckless, and rapid rate of speed at which the same were being run within said city limits, and by reason of the same not having been brought to a full stop at said 400-foot post, or at a point 400 feet from said crossing, and by reason of said track being out of repair, and by reason of worn and defective brakes and machinery for operating the same on said cars, and by reason of the want of a sufficient number of competent and skilled brakemen to operate the same, and by reason of the negligence of other brakemen in putting on the brakes on said cars, and by reason of negligence and want of skill on the part of the defendant, its agents, servants, and employes, the conductor, engineer, and other brakemen operating said train in running and managing the same, and without any fault, neglect, or omission on the part of the said Charles W. Lockwook, deceased; that the agents, servants, and employes of the defendant upon said engine, in order to stop said train of cars before the same should reach or run upon said crossing of the Chicago, Milwaukee & St. Paul Railway, negligently, carelessly, and recklessly reversed the motion of said engine, and without blowing the whistle or ringing the bell, or giving other warning or signal, negligently and carelessly propelled the same backward with great suddeness and rapidity, and at a rate of speed greater than six miles an hour, toward and upon said train of cars, which were then moving at a greater rate than six miles per hour, within said city limits, by reason of the negligence of the defendant, aforesaid; that said engine and said train were by the defendant, its said agents, servants, and employes, the said conductor, engineer, and brakemen, and without any fault or negligence of the said Charles W. Lockwood, operated and managed so negligently, carelessly, and unskilfully, as aforesaid, that said engine collided with said train of cars with great force and violence, and that the front end of the first car next to said engine was badly smashed and broken by the collision with said engine, and was thereby thrown from the said track to the west or left-hand side thereof; that at the time of said collision said deceased was on said iron ladder provided for the use of brakemen on the front and right-hand side of said car, next to said engine; that by reason of the negligence of the defendant, its agents, servants, and employes, the fellow-servants of the said deceased, and without any contributory negligence on his part, the said engine and said train of cars were so carelessly and unskilfully run, operated, and managed, as aforesaid, that said engine was propelled against the front end of said car, as aforesaid, before the said deceased could escape therefrom; that the said deceased was struck by said engine, or tender thereof, with such force that he was

thrown between said engine and said car, and was thereby badly crushed, bruised, and mangled; that as said car was crowded upon said engine, and the front end thereof forced off the track to the left, as aforesaid, the said deceased was crushed between the said car and said engine, or the tender thereof, and pushed and thrown out on the right-hand side, and hurled to the ground with great force and violence,” etc.

In the amended complaint he makes the following allegations as to defendant's negligence, and the manner in which the injuries to the deceased occurred: “That about the time the train arrived at the 400-foot post the deceased, in discharge of his duty as brakeman upon said train, was required to uncouple the same from the said engine, and for that purpose, and in the line of his said employment, was upon the first car in said train, and on or about the front end thereof; that in order to stop the said train and cars before they should run over and upon the said crossing of the Chicago, Milwaukee & St. Paul Railway track, the said engine was negligently and recklessly reversed, and without warning or signal propelled with great force against and upon the said cars which were then running at a rate of speed greater than six miles per hour between said crossing and said 400- foot post aforesaid, and within the said city limits; that by reason thereof, and by reason of the unlawful, reckless, and rapid rate of speed at which the same were being run within said city limits, and by reason of the same not having been brought to a full stop at said post 400 feet distant from said crossing, and by reason of said track being out of repair, and by reason of worn and defective brakes and machinery for operating the same on said cars, and by reason of the want of a sufficient number of competent and skilful brakemen to operate the same, and by reason of the negligence of said other brakemen in putting on the brakes on said cars, and by reason of the negligence and want of skill on the part of the defendant, its agents, servants, and employes in operating said road and in running and managing said train, and without the fault, neglect, or omission of duty on the part of the said deceased, the front end of said car next to said engine was thrown from the track and the said deceased was precipitated to the ground with great force and violence; that by reason of bruises, wounds, and injuries then and there received through the negligent acts and omissions of the said defendant, its agents, servants, and employes, the fellow-servants of the said deceased, and without any contributory negligence on his part, he, the said deceased, was made sick, sore, lame and disabled, and in consequence thereof he died,” etc. The 400-foot post spoken of in the complaint is the post 400 feet south of the crossing, which is found...

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