50 N.W. 942 (Wis. 1891), Kelleher v. The Milwaukee & Northern Railroad Company

Citation:50 N.W. 942, 80 Wis. 584
Opinion Judge:JOHN B. WINSLOW, J.
Party Name:KELLEHER, Administrator, Respondent, v. THE MILWAUKEE & NORTHERN RAILROAD COMPANY, Appellant
Attorney:For the appellant there was a brief by Greene & Vroman, and oral argument by Geo. G. Greene. For the respondent there was a brief by Wigman & Martin, and oral argument by P. H. Martin.
Case Date:December 15, 1891
Court:Supreme Court of Wisconsin
 
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Page 942

50 N.W. 942 (Wis. 1891)

80 Wis. 584

KELLEHER, Administrator, Respondent,

v.

THE MILWAUKEE & NORTHERN RAILROAD COMPANY, Appellant

Supreme Court of Wisconsin

December 15, 1891

Argued November 19, 1891.

APPEAL from the Circuit Court for Brown County.

Action by respondent, as administrator, on account of the death of his son, a minor, nineteen years and eight 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, was 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 steampipe 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 coalshed, 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 eight or ten 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...

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