12 N.W. 401 (Wis. 1882), Lockwood v. Chicago & Northwestern Railway Company

Citation:12 N.W. 401, 55 Wis. 50
Opinion Judge:TAYLOR, J.
Attorney:For the appellant there was a brief by Bashford & Spilde, his attorneys, and I. C. Sloan, of counsel, and oral argument by Mr. Bashford and Mr. Sloan. F. J. Lamb, as attorney, and Thomas Wilson, of counsel, for the respondent, argued, among other things, that the plaintiff has the burden of proof...
Case Date:May 10, 1882
Court:Supreme Court of Wisconsin

Page 401

12 N.W. 401 (Wis. 1882)

55 Wis. 50

LOCKWOOD, Administrator,



Supreme Court of Wisconsin

May 10, 1882

Argued March 17, 1882

APPEAL from the Circuit Court for Dane County.

After the evidence was all in, the court, on defendant's motion, rendered a judgment of nonsuit; and plaintiff appealed.

Judgment affirmed.

For the appellant there was a brief by Bashford & Spilde, his attorneys, and I. C. Sloan, of counsel, and oral argument by Mr. Bashford and Mr. Sloan. They reviewed the testimony at length, and argued, among other things, that the fact of the accident, under the circumstances of this case, raises a presumption of negligence on the part of the defendant, which it is bound to rebut in order to defeat the action. Christie v. Griggs, 2 Camp., 79; Stokes v. Saltonstall, 13 Pet., 181; Curtis v. Railway, 18 N. Y., 534; Carpue v. Railway, 5 Q. B., 747; Laing v. Colder, 8 Pa. St., 479; 3 Eng. Railway Cas., 692; 8 Jur., 462; 13 L. J. (Q. B.), 133; Holbrook v. Railway, 16 Barb., 113; Festal v. Middlesex Railway, 109 Mass., 398. This rule is elementary. See 2 Greenl. Ev., sec. 222, and cases cited. The law implies negligence under such circumstances, and requires the defendant to prove affirmatively that proper care and skill were exercised. This it does out of regard to both the convenience and the justice of the case--convenience, because the evidence is generally in the possession of the defendant and not in that of the plaintiff; and justice, because the plaintiff should not be required to give evidence as to facts which are known to the defendant and not to him, and which the defendant is interested in withholding from him.

F. J. Lamb, as attorney, and Thomas Wilson, of counsel, for the respondent, argued, among other things, that the plaintiff has the burden of proof, and must prove the negligence of the defendant. The happening of an accident is not enough, but "there must be proof of well-defined negligence." Cotton v. Wood, 8 C. B., N. S. (98 Eng. C. L.), 568; Baulec v. Railway Co., 59 N. Y., 356; Delaney v. Railway Co., 33 Wis., 67; Kronshage v. Railway Co., 45 id., 500; Steffen v. Railway Co., 46 id., 259; Wood on Master and Servant, § 382; Mich. Cent. Railway Co. v. Austin, 40 Mich., 247; Ladd v. Railway Co., 119 Mass., 412; Smith v. Railway Co., 69 Mo., 32; Hayden v. Manuf'g Co., 29 Conn., 548; Skip v. Railway Co., 9 Exch., 223; McGlynn v. Brodie, 31 Cal., 378; Lonegrave v. Railway Co., 16 C. B., N. S. (111 Eng. C. L.), 692; Parrot v. Wells, 15 Wall., 537; Wharton on Neg. (2d ed.), secs. 421, 428.



[55 Wis. 57] The case is thus stated by Mr. Justice TAYLOR:

"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 employees. The accident which caused the death of the plaintiff's intestate occurred before the repeal of section 1816, R. S. 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 28th 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

Page 402

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 occurrence of the injury, and the negligence of the defendant, its agents, servants and employees, in the following language:

"'That at the time the train arrived at said 400-foot post, 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...

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