Pease v. Chi. & N. W. Ry.

Decision Date14 October 1884
Citation61 Wis. 163,20 N.W. 908
CourtWisconsin Supreme Court
PartiesPEASE, ADM'X, ETC., v. CHICAGO & N. W. RY.

OPINION TEXT STARTS HERE

Appeal from circuit court, Sauk county.

Lusk & Perry, for appellant.

Wm. F. Vilas, for respondent.

COLE, C. J.

The first error relied on for a reversal of the judgment is based on the refusals of the trial court to allow the plaintiff to make such proof as she could, as to the care used by the defendant in repairing the broken chains which connected the lever with the draw-bar. When these chains are in order, a brakeman, while standing on the platform of the car, can uncouple the cars by means of the lever. It appears that the conductor, when at Evansville, knew that the chains on the south end of the rear St. Paul car and the north end of the forward Winona car were broken, and one of these chains was in fact repaired at Baraboo. These were the two cars which were to be uncoupled when the train arrived at Elroy. But the chains, whether broken or not, in no way affect the security or operation of the train, but when they are broken the cars are usually uncoupled by brakemen going under the platform and inserting a pinch-bar, or chisel-bar as it is called in the testimony, and prying the two jaws of the opposite draw-bars apart, thus disengaging the cars. The deceased was engaged in uncoupling the cars with this instrument at Elroy when he received the injury which caused his death.

On the trial, the plaintiff offered testimony which was calculated to show that if the conductor had used proper diligence, after he knew the chains were broken, in sending forward word to the repair shops of the company at Baraboo, the chains might have been repaired while the train stopped at that place. But this testimony was objected to and excluded on the ground that it was immaterial. The learned circuit judge probably thought that negligence could not be predicated on the failure of the conductor to have the chains repaired, even if that could have been done without delaying the train; and it is not clear that this view was not correct. For it must be remembered that whether the chains were broken or not did in no way affect the operation of the train. The train could be run with as much speed, ease, and safety with broken as unbroken chains. They were a convenient appliance for uncoupling cars. But still, the testimony is uncontradicted that they were often broken, and that, even when in order, it was frequently necessary--“almost a daily occurrence”--for the brakeman to uncouple the cars, either above or beneath the platform, with the bar, because they could not be uncoupled by means of the lever and chain. But assuming that it was the duty of the conductor, under the circumstances, to have the chains repaired, then, the learned counsel for the defendant says, in view of the special verdict, the ruling of the court excluding the evidence is justifiable on two grounds. In the first place, he insists that all the testimony shows that the broken chain was not the proximate cause of the accident; as it clearly was not. As he says, it merely furnished an occasion for uncoupling the cars, in another than the more usual way, with the lever; but there was no risk of any injury from uncoupling with the bar while the cars were standing still.

It may be well to refer briefly to the circumstances attending the accident. It appears that the deceased was a brakeman on an express train of the defendant which ran from Chicago via Harvard, Evansville, Madison, and Baraboo to Elroy. The train consisted of 12 or 13 cars. At Elroy the train was divided, a sleeper and the hind coach being cut off or dropped at a certain point before they got to the depot platform, and left on the track to be afterwards attached to the Winona train, while the rest of the train went up to the depot on the St. Paul side and continued on to that city. The usual way of cutting off the hind cars was to do so at a certain point in the yard...

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22 cases
  • Garrahy v. Kansas City, St. J. & C.B.R. Co.
    • United States
    • U.S. District Court — District of Kansas
    • October 3, 1885
    ...of cars to yard to be repaired, with brakeman. Fraker v. St. Paul, M. & M. Ry. Co., 19 N.W. 349. Conductor of brakeman, Pease v. Chicago & N.W. Rey., 20 N.W. 908; not of engineer. Ross v. Chicago, M. & St. P. Ry. Co., 8 Fed.Rep. 544; Chicago, M. & St. P. Ry. Co. v. Ross, 5 Sup.Ct.Rep. 184. ......
  • Saint Louis & North Arkansas Railroad Co. v. Midkiff
    • United States
    • Arkansas Supreme Court
    • May 6, 1905
    ...Ark. 138; 67 Ark. 209, 377. Appellant was negligent in not stopping car after appellee was thrown on the track. 61 Ark. 341; 65 Ia. 658; 61 Wis. 163. It is not per se to alight from a car in motion. 46 Ark. 423; 162 Ill. 447. The question of fellow-servants was for the jury to determine. 63......
  • Knudsen v. La Crosse Stone Co.
    • United States
    • Wisconsin Supreme Court
    • March 20, 1911
    ...Shipbuilding Co., 143 Wis. 454, 127 N. W. 1053. A conductor is the fellow servant of a train crew under him. Pease, etc., v. C. & N. W. R. Co., 61 Wis. 163, 20 N. W. 908. The master of a vessel of his mate and other members of the crew. Mathews v. Case, 61 Wis. 496, 21 N. W. 513, 50 Am. Rep......
  • Parsons v. Missouri Pac. Ry. Co.
    • United States
    • Missouri Supreme Court
    • January 16, 1888
    ... ... Railroad, 76 Mo. 288; Railroad v. Staley, 19 ... Am. and Eng. Ry. Cas. 381; Cleveland v. Elliott, 4 ... Ohio St. 474; Pease, Adm'x, v. Railroad, 61 Wis ... 163. (b) The evidence shows that the cars were loaded, and ... approached the other loaded cars at the rate of ... ...
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