Kelley v. Chi., M. & St. P.R. Co.

• Decision Date: 27 September 1881
• Citation: 9 N.W. 816,53 Wis. 74
• Parties: KELLEY, ADM'R, ETC., v. CHICAGO, M. & ST. P. R. CO.
• Court: Wisconsin Supreme Court

53 Wis. 74

9 N.W. 816

KELLEY, ADM'R, ETC.,

v.CHICAGO, M. & ST. P. R. CO.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from county court, Milwaukee county.Murphy & Goodwin and J. M. Connolly, for appellant.

D. S. Wegg and J. W. & M. B. Cary, for respondent.

TAYLOR, J.

This action is brought by the administrator of John Larkin, deceased, to recover damages of the defendant for negligently causing the death of said deceased. The record shows that at the time of receiving the injury which caused the death of the deceased he was, and for some time previous thereto had been, in the employ of the railway company. The complaint charges the injury to have happened to the deceased-- First, by reason of the carelessness of the railway company; second, through the carelessness and negligence of its agents and servants. In the complaint, the plaintiff sets out the facts relating to the employment and duties of the deceased, and the alleged negligence and carelessness of the defendant, and its agents and servants, as follows:

“That on and before the twenty-sixth day of August, A. D. 1879, the said John Larkin had been and was hired by the said defendant, and employed by it in and about the business of coupling and switching, and taking care of the cars of said defendant in the yard of said defendant in the city of Milwaukee, said county; that in the performance of his duties as such servant said Larkin was required to be at and near the tracks of said company in its said yard, and near elevator A, situate in the yard of said defendant; and the said Larkin was then and there charged with the duty of switching and coupling cars, and preventing injury to the property of said company, by collision or otherwise, in the moving of said cars on the various tracks in the yard of said defendant.

Plaintiff further alleges that on or about said twenty-sixth day of August, A. D. 1879, the said defendant wrongfully, negligently, and in a grossly careless manner, allowed a freight car to run loose upon one of its tracks in said yard, on a down grade thereof, without any person being stationed thereon to set the brakes thereon, or to signal an alarm at its approach, and without any provision made for arresting the progress of said car when once in motion--the said defendant then and there well knowing that to allow a car so to run loose was grossly careless and negligent; and this plaintiff alleges that the said John Larkin, seeing such car advancing, and the same being then and there in imminent danger of colliding with a switch-engine then and there being upon the same track, turned a switch and thus prevented a collision by turning this car onto another track.

And this plaintiff further alleges that at or about the same time the said defendant wrongfully, carelessly, and negligently allowed a certain other freight car to run loose out of said elevator A, and concealed from said Larkin, upon a track which crossed the track upon which said first-mentioned car had been switched, without any person being stationed thereon to set the brakes or to signal an alarm at its approach, and without any provision made for arresting the progress of the same when once in motion; the said defendant then and there well knowing that to allow a car so to run loose was grossly careless and negligent.”

The answer is a general denial, and an allegation that the injury which caused the death of the deceased happened by reason of the negligence of the deceased.

There was a jury trial and a special verdict. After verdict, both parties moved for judgment upon the verdict, and the court below ordered judgment in favor of the defendant, dismissing the plaintiff's complaint with costs, and denied the motion of the plaintiff for judgment in his favor. There was no bill of exceptions settled in the case, and this appeal brings up only the pleadings, verdict, motion for judgment, and judgment.

Larkin, the deceased, was injured and died while section 1816, Rev. St. 1875, was in force, which made the company liable to its employes for injuries occurring through the negligence of its other agents or servants.

Without setting out at length the 30 questions submitted to the jury for them to answer as their special verdict, it is sufficient for the purposes of this case to state that the jury have not found by their special verdict that the defendant company, or any of its agents or servants, were guilty of any carelessness or negligence which caused the injury resulting in the death of the deceased. No interrogatory was submitted to them upon that subject. This defect in the verdict must be fatal to the right of the plaintiff to a judgment in his favor, unless it be cured, either by what is claimed to be a general verdict in his favor, or the finding that the cars which collided and caused the injury were permitted to run on the track out of the elevator, and on the track along-side of the same, without a brakeman thereon, is a sufficient finding of fact from which the court can infer negligence as a conclusion of law.

It is urged by the learned counsel for the appellant that there is a general verdict in this case for the plaintiff, and that such general verdict must be construed to have found in favor of the plaintiff upon all questions of fact not covered by the special findings of fact, necessary to sustain the general verdict, and it must be held, therefore, that the jury have found that the defendant was guilty of negligence which caused the injury. We have very grave doubts whether it is proper practice under our statute, when a special verdict is demanded by either party, to take a general verdict upon the whole case. Such a practice, it seems to me, would complicate the case so that it would be difficult to determine what issues were submitted to the jury for their special determination, and what were reserved to be covered by the general verdict. But, whatever may be the correct rule in respect to this question, we are of the opinion that in this case there was no general verdict...