Kelleher v. Milwaukee & N. R. Co.

• Decision Date: 15 December 1891
• Citation: 80 Wis. 584,50 N.W. 942
• Parties: KELLEHER v. MILWAUKEE & N. R. CO.
• Court: Wisconsin Supreme Court

80 Wis. 584

50 N.W. 942

KELLEHER

v.MILWAUKEE & N. R. CO.

Supreme Court of Wisconsin.

Dec. 15, 1891.

Appeal from circuit court, Brown county; SAMUEL D. HASTINGS, Judge.

Action by John J. Kelleher against the Milwaukee & Northern Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

Action by respondent, as administrator, on account of death of his son, a minor, 19 years and 8 months of age. The deceased was a switchman in defendant's yard at Green Bay, and was killed April 12, 1890. On that day the switch-engine, with deceased and two other switchmen,were sent to remove a mail-car and coal-car from a side track in the yard. This side track was the outside track in the yard, and a coal-shed stood near it, from which passenger and mail cars were supplied with coal when switched onto this track for that purpose. This seems to have been practically the only purpose to which this side track was put. On the morning in question a coal-car and mail-car stood on this track north of the coal-shed, the mail-car being to the south, and the switch-engine was to throw the coal-car out on the main line and the mail-car back. The engine came from the south. Couplings were made by the switchmen, and the engine started south with the two cars, the intestate and one other switchman standing on the platform at the north end of the mail-car, which point was then 100 to 130 feet north of the coal-shed, and the other switchman being at the north end of the coal-car. As the cars started, water commenced running down from a steam-pipe at the north end of the mail-car upon deceased, who got down on the lowest step of the platform on the west side of the car to avoid the water, which was blowing in his face. The water continued to blow in his face, and he took hold of the hand-railings and swung his body outside of the car, throwing his head back in the effort to avoid it. While so standing, the train moving six to eight miles an hour, his head and shoulders struck against some part of the coal-shed, and he was thrown under the wheels of the coal-car and killed. It was his duty to jump off the train while in motion, and throw a switch about 8 or 10 car-lengths from where he started. The coal-shed was 22 1/2 inches from the side of the mail-car at its nearest point. The shed had been there several years, and is nearly opposite the station. Deceased had worked in the yard as switchman nearly or quite a year, and before that time had been yard-clerk for a short time. It does not positively appear that he ever made this switch before. If he had done so at all, it was but a few times, In response to appropriate questions, the jury found (1) that the shed was so close to the track as to render the place unnecessarily dangerous to employes in performing their duties at that place; (2) that deceased did not know of the existence of the shed, and its distance from the track and cars; (3) that he had not the means of such knowledge; (4) that he could not have avoided the accident by the exercise of ordinary care; and plaintiff's damages were assessed at $1,200. A motion for a new trial was overruled, and judgment entered on the verdict, from which defendant appeals.

Greene & Vroman, for appellant.

Wignian & Martin, for respondent.

WINSLOW, J., ( after stating the facts.)

The trial seems to have been in all respects fair. No exceptions are urged either to the rulings upon testimony or to the instructions of the court. The facts are not in dispute, but the appellant drges: First, that there is no sufficient finding of defendant's...