Berg v. Chicago, Milwaukee & St. Paul Railway Company

Citation7 N.W. 347,50 Wis. 419
PartiesBERG v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY
Decision Date30 November 1880
CourtUnited States State Supreme Court of Wisconsin

Argued November 10, 1880

APPEAL from the County Court of Milwaukee County.

The action was brought under chapter 173, Laws of 1875, to recover damages for personal injuries received by the plaintiff, caused by the alleged negligence of a certain employee of the defendant railway company. No question is raised on the pleadings.

It appears from the evidence given on the trial, that, at the time he was injured, the plaintiff was at work for the defendant as a trackman, and had been in such employment for about two years. On the morning of December 21, 1878, he was engaged with others, under the direction of the proper foreman, in removing snow and ice from a track in the depot yard of the defendant in the city of Milwaukee. A locomotive pushing a box car passed him, going south. He looked in the direction from whence it came, and, seeing nothing else approaching, commenced work on the same track, with his back to the south. Two other men, facing south, were also at work on the same track a few feet south of him. Very soon after the plaintiff commenced work, a car was thrown upon the track on which he was at work, south of him, detached from the locomotive. It was probably the same car which passed him shortly before. There was a brakeman on the top of it. The car moved slowly, and just as it approached the two men at work there, they saw it and got off the track. It passed on struck the plaintiff, knocked him down, pushed him along the track a short distance, and then one wheel passed over his leg, injuring it so that it was necessarily amputated above the knee.

When the plaintiff was struck, he cried out, and the brakeman (who was about to descend, or was descending from the car) ran to the brake at the other end of the car, turned it down, and stopped the car before the second wheel of the forward truck passed over the plaintiff.

The brakeman testified that when about 200 feet distant from the plaintiff he called to him and the others at work there to "look out;" that he saw the two men get off the track, and supposed the plaintiff had done so until he heard the latter cry out; and that he could have seen the plaintiff until the car came within twenty feet of him. A witness who was working near the plaintiff on another track, testified that when the car was some distance from the plaintiff (but nearer the witness), he heard some one call "Look out," but don't know who called. The plaintiff, the two men working near him on the same track, two other men who were at work near him on other tracks, and the section foreman, who was ten rods or more further from the car than was the plaintiff, all testify that they did not hear the brakeman give any warning of the approach of the car. It further appears that, at the time of the accident, the weather was cold, and the plaintiff's cap was pulled down over his ears; but how closely, or to what extent his ability to hear was thereby impaired, does not appear.

At the close of the plaintiff's testimony, and again after the testimony was all in, counsel for defendant moved for a nonsuit. Both motions were denied.

Counsel for defendant proposed six instructions, all of which were given except the following: "The positive testimony of two witnesses to the fact that the brakeman called out, will outweigh the negative testimony of four who testify that they did not hear it, provided the witnesses are all equally credible."

Counsel for defendant also demanded a special verdict, and asked the court to submit the following questions to the jury "(1.) Was the brake on this car set at the time of the accident? (2.) Was it plaintiff's duty, according to the custom of this railroad yard, to look out for himself while working on the track? (3.) Was this accident the result of any negligence on the part of the defendant? (4.) If you answer the foregoing question in the affirmative, state in what that negligence consisted. (5.) Was plaintiff in the exercise of due care when he took up his position on the track with his back towards the switch engine and cars, and his cap drawn down over his ears?"

The court refused to submit such questions to the jury, but submitted instead thirteen questions, the first four and the twelfth of which were proposed on behalf of the plaintiff. The questions thus submitted, and the answers of the jury thereto, are as follows: "(1.) Does ordinary care and prudence require that a notice, signal or warning should be given to persons placed to work as the plaintiff was placed at the time he sustained his injury, where a car is run upon such track as the car which struck the plaintiff was? A. Yes. (2.) Was such a notice, signal or warning given at the time the plaintiff was injured? A. No. (3.) If not, was the omission to give the same negligence on the part of the defendant or its employees? A. Yes. (4.) Was such negligence the proximate cause of the injury sustained by the plaintiff? A. Yes. (5.) Was this car going at a slow rate of speed? A. Yes. (6.) Was there a brakeman upon the car just preceding and at the time of the accident? A. Yes. (7.) Did this brakeman call to the men working on the track to look out? A. No. (8.) Did the brakeman set up the brake before the accident, or not until after the man was knocked down? A. Not until afterwards. (9.) Was the plaintiff told at the time he went into defendant's employ, to look out for himself while working at the track? A. No; except, possibly, in a general way. (10.) Did plaintiff know it to have been a frequent occurrence in this yard to send cars upon the different tracks in the yard without having brakemen upon them? A. Yes. (11.) Was the brakeman guilty of a want of ordinary care and diligence at the time of the accident? A. Yes. (12.) Was the plaintiff guilty of want of ordinary care which contributed to his injury? A. No. (13.) Do you find for the plaintiff or for the defendant, and, if for the plaintiff, at what sum do you assess his damages? A. We, the jury, find for the plaintiff, and assess damage in the sum of $ 11,000."

A motion for a new trial was denied, and judgment for the plaintiff was entered pursuant to the verdict, for $ 11,000 and costs. The defendant appealed from the judgment.

Judgment affirmed.

For the appellant there was a brief by Mclbert B. Cary, and oral argument by John W. Cary. They made the following among other points: 1. The court below erred in refusing to charge the jury as requested by defendant. The instruction asked was based upon the undisputed evidence in the case, and upon the ruling in Urbanek v. Railway Co., 47 Wis. 59. See C. & A. R. R. Co. v. Gretzner, 46 Ill., 75; Culhane v. R. R. Co., 60 N. Y., 133. 2. The court erred in refusing to submit to the jury the questions propounded by defendant. Upon the second question hinges the liability in this case. It involved matters of pure fact, to be found by the jury. 3. The damages are excessive. Actual damages only are to be allowed. These include compensation for diminished capacity for work, and for pain and suffering. Plaintiff was earning about $ 300 per annum. He was a common laboring man of middle age, not a skilled laborer or in the direct line of any possible promotion. The present pecuniary value of his entire capacity for earning money was, by the Northampton tables, $ 3,054.90; by the Carlisle tables, $ 3,388.50. But his capacity is not diminished more than one-half. The plaintiff's sufferings do not appear to have been unusual. He was confined to his bed but ten weeks. The sum allowed is unreasonably large, and evinces partiality, prejudice and a perverted judgment on the part of the jury. Goodno v. Oshkosh, 28 Wis. 300; C. & N.W. R'y Co. v. Jackson, 55 Ill., 492; Collins v. R. R. Co.; 12 Barb., 492; Potter v. R'y Co., 21 Wis. 372; 22 id., 615.

For the respondent there was a brief by Jenkins, Elliott & Winkler, and oral argument by Mr. Winkler:

The instructions given to the jury were not excepted to, and not made part of the bill of exceptions. They must be presumed to have been not only correct but full. Error is not presumed, but must be shown by the party alleging it. O'Malley v. Dorn, 7 Wis. 236; Townsends v. Bank, id., 185; Parish v. Eager, 15 id., 532; Kelley v. Kelley, 20 id., 443; Eaton v. Lyman, 33 id., 34. The instruction refused must be presumed superfluous, even though it be correct. Osen v. Sherman, 27 Wis. 501; Karasich v. Hasbrouck, 28 id., 569. But the rule of law embraced therein is not correct, unless, as was not the case here, the situation of all the witnesses is the same. Urbanek v. Railway Co., 47 Wis. 59. Nor was the instruction applicable to the facts proven. Upon the question of damages, counsel cited Schultz v. Railway Co., 48 Wis. 375; Blair v. R. R. Co., 20 Wis. 254; Curtis v. R. R. Co., 27 id., 158; Schmidt v. Railway Co., 23 id., 186; Barksdull v. R. R. Co., 23 La. Ann., 180; Choppin v. R. R. Co., 17 id., 19; Boyce v. Stage Co., 25 Cal., 460; Caldwell v. Steamboat Co., 56 Barb., 426; Walker v. Railway Co., 63 id., 260; Campbell v. Portland Sugar Co., 62 Me., 552; Deppe v. R. R. Co., 38 Iowa, 592; Belair v. Railway Co., 43 id., 662; Collins v. Council Bluffs, 32 id., 324; 35 id., 432; Shaw v. R. R. Co., 8 Gray, 45; Hewlett v. Cruchley, 5 Taunt., 277; Craker v. Railway Co., 36 Wis. 679.

OPINION

WILLIAM P. LYON, J.

The determination of three questions will dispose of all the errors alleged as grounds for a reversal of the judgment.

1. Did the circuit court err in refusing to submit to the jury the questions, or either of them, proposed on behalf of the defendant? The substance of the first of these questions, "Was the brake on this car set at the time of...

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