Cottrill v. Chi., Milwaukee & St. Paul Ry. Co.

• Decision Date: 28 November 1879
• Citation: 3 N.W. 376,47 Wis. 634
• Court: Wisconsin Supreme Court
• Parties: CARRIE A. COTTRILL, ADMINISTRATRIX, ETC., APPELLANT, v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, RESPONDENT.

47 Wis. 634

3 N.W. 376

CARRIE A. COTTRILL, ADMINISTRATRIX, ETC., APPELLANT,

v.THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, RESPONDENT.

Supreme Court of Wisconsin.

Filed November 28, 1879.

Appeal from Milwaukee county court.

Murphy & Goodwin, for appellant.

Gregory & Gregory and J. W. & M. B. Cary, for respondent.

ORTON J.

The jury found that the carelessness of the employes of the defendant materially contributed to the injury of the plaintiff, and, therefore, the following findings relating to the carelessness of the plaintiff need only be considered in determining the correctness or incorrectness of the judgment:

“Did the carelessness of Cottrill, deceased, materially contribute to the result complained of?” “Yes.”

“Could Cottrill, after seeing the signal to stop, and reversinghis engine, in the exercise of ordinary care and prudence have gotten off from his locomotive before the collision?” “Yes.”

“Could Cottrill have pulled his train out on the go-out track, instead of the come-in track, and switched his cars by so doing?” “Yes.”

“If Cottrill had moved his train of 33 cars upon the go-out track, at the time he was going out, would he not have been in danger of the train going out on the Prairie du Chien track at 8:50?” “Yes.”

These special findings must be presumed to be all the facts found by the jury upon which the carelessness of the appellant was predicated; but, if such was not the presumption, there appear to have been no other acts or omissions of the appellant proved which show any carelessness on his part.

Treating these two last findings as still leaving the inference that the deceased was negligent in not taking the go-out track, notwithstanding the danger of a collision on that track with the Prairie du Chien train, as contended by the learned counsel of the respondent--which, to say the least, is very questionable--the only other finding on which the general finding of the carelessness of the deceased was or could be predicated is that in the exercise of ordinary care and prudence he could have gotten off from the locomotive after the signal to stop, and after reversing his engine, and thus have escaped danger. Did his failure to jump off from the locomotive at the time and under the circumstances constitute such negligence on his part as to prevent a recovery?

It was in evidence that his fireman, on seeing the danger from a collision, jumped off and landed on the ground safely, and that the last he or anybody saw of the deceased he was standing up in front of the boiler, and had the reverse lever in his right hand, and the throttle in his left, and while he was in this attitude the collision took place, and by the concussion the tender was driven forward and against the deceased, and confined and crushed him against the hot boiler, and by this means, after great agony and suffering, he was killed.

According to the common appreciation of human...