Stackman v. Chi. & N. W. Ry. Co.

• Decision Date: 17 November 1891
• Citation: 80 Wis. 428,50 N.W. 404
• Court: Wisconsin Supreme Court
• Parties: STACKMAN v. CHICAGO & N. W. RY. CO.

80 Wis. 428

50 N.W. 404

STACKMAN

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Nov. 17, 1891.

Appeal from circuit court, Sauk county; R. G. SIEBECKER, Judge. Affirmed.

Action by Albert Stackman against the Chicago & Northwestern Railway Company to recover damages for personal injuries sustained while in defendant's employment. From a judgment for plaintiff, defendant appeals.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

G. Stevens, for respondent.

ORTON, J.

The material facts are these: The company had been constructing a “wye” leaving a main side track of its road, curving around to the east up into a ravine, where the stone is to be quarried for carriage on the road, and from that point returning towards the west to the road. The stone to be quarried was situated north of and near the disconnected end of the north branch or arm of the “wye.” The north branch of the “wye” was built close to higher ground, so that when the bed for the track was excavated and prepared for the iron there was a bank from 12 to 18 feet high along and very near the north side of the track. The work was not entirely finished, but sufficiently to be used for such purpose. This branch was in some places several feet away from the embankment, but at the place where the accident happened the track was so close to the bank that a car standing upon it would come so near to the bank as not to permit a person to pass through the space between the car and the bank intact. Three cars, loaded with stone, were standing on that track near this narrow place, which had to be moved by hand towards the main side track of the road. From 20 to 30 men had been at work, some in the quarry, some in making this track of the “wye,” and some, together with the plaintiff, in digging a ditch leading from the quarry across the north branch of the “wye” down into the ravine between the two branches. All of these men, under one Charles Strom, their foreman, were ordered by him to assist in moving such loaded cars to the main side track. The plaintiff had assisted to so move two of said cars from a point between such narrow place and the side track, and had tarried longer than the rest of the men to couple the last car to another on the side track, so that when he returned to assist in moving the last car, which was standing nearly opposite, but somewhat above, such narrow space between the track and the bank, all of the men had hold of the car, and had started it. He had come back in a hurry, and was ordered by the foreman to take hold of the car and push. The other men had hold of the car at all the places where they could push to advantage, except on the side of the car next to the bank, leaving no room for the plaintiff to take hold except on that side. The car had to be pushed up grade, and it was quite muddy along the sides of the track. The plaintiff put his shoulder against a projection or pocket on that side, and pushed as hard as he could. He looked down to see where to step, and did not observe that narrow place between the car and the bank, from 12 to 14 feet ahead of him, and was caught between the car and embankment, and crushed, and badly injured. This is the cause of action, as substantially stated in the complaint, which the defendant company answered by a general denial. The special verdict of the jury was: (1) That the defendant was guilty of negligence, for the reason that the bank was too close to the track on which the car was pushed, and that the foreman of the gang omitted to give the men proper notice of the existing danger; (2) that it was an act of common prudence on the part of the plaintiff to place himself between the car and the bank for the purpose of pushing the car, under the existing circumstances, by considering that he was the last man to take a place on the car, and the rest of the men had taken up the space of the car on the other side, and the plaintiff was unconscious of any existing danger; (3) that the plaintiff could not, by the exercise of ordinary care, have avoided the injury, as he was ordered to help push the car by the foreman, who failed...