60 N.W. 998 (Wis. 1894), Culbertson v. Milwaukee & Northern Railroad Co.

Citation:60 N.W. 998, 88 Wis. 567
Opinion Judge:JOHN B. WINSLOW, J.
Party Name:CULBERTSON, Administratrix, Appellant, v. THE MILWAUKEE & NORTHERN RAILROAD COMPANY, Respondent
Attorney:T. R. Hudd, for the appellant. For the respondent there was a brief by Greene & Vroman, and oral argument by C. E. Vroman.
Case Date:November 13, 1894
Court:Supreme Court of Wisconsin

Page 998

60 N.W. 998 (Wis. 1894)

88 Wis. 567

CULBERTSON, Administratrix, Appellant,

v.

THE MILWAUKEE & NORTHERN RAILROAD COMPANY, Respondent

Supreme Court of Wisconsin

November 13, 1894

Argued October 25, 1894.

APPEAL from the Circuit Court for Marinette County.

This is an action for the death of plaintiff's intestate, caused by the alleged negligence of the defendant. The deceased was the husband of the plaintiff. He was in July, 1891, yard foreman of the firm of Bird & Wells, who owned and operated a saw and planing mill at Big Wausaukee, a lumbering point on defendant's line of road. A spur track from defendant's road, about a mile in length, ran into the mill yard. The deceased had charge of the piling and shipping of lumber in the yard. When cars were required in the yard for shipping lumber, the defendant set them into the yard with an engine, and took them out again when loaded. When it became necessary to move cars from place to place in the yard, they were moved by men with pinch bars, or sometimes with a horse and chain, generally under the direction of the deceased. Sometimes the cars, when so moved, were stopped with a brake, and sometimes by putting blocks in front of the wheels.

On the day prior to the accident, a foreign flat car was set in the yard by the defendant's employees. It had a brake which could not be set so as to hold the car. On the 23d day of July, 1891, this flat car stood at the side of the planing mill, and was loaded with lumber under Culbertson's orders. When loaded it was desired to move it a short distance to the east, to make room for another car to come up to the mill and be loaded. There was a down grade in this direction. Culbertson was on the car, and called a yard employee, who had a horse, to hitch onto the car and move it. The employee hitched onto the car with a chain, and started the car. It began to move too fast, and Culbertson tried to stop it with the brake. Finding the brake would not hold the car, he jumped off on the north side of the car, safely, and then ran in front of the car, about the middle of the track, and began to throw chips, and anything he could pick up, under the wheels of the car; the car at the same time moving towards him about as fast as a man could walk, and he jumping back to keep out of the way. About 100 feet east of the place where the car was loaded, a movable tramway, composed of heavy, loose...

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