Boucher v. Wis. Cent. Ry. Co.

• Decision Date: 21 December 1909
• Citation: 123 N.W. 913,141 Wis. 160
• Parties: BOUCHER v. WISCONSIN CENT. RY. CO.
• Court: Wisconsin Supreme Court

141 Wis. 160

123 N.W. 913

BOUCHER

v.WISCONSIN CENT. RY. CO.

Supreme Court of Wisconsin.

Dec. 7, 1909.

Dissenting Opinions Dec. 7, 1909.

Dec. 21, 1909.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by Elizabeth Boucher, as administratrix of David Boucher, deceased, against the Wisconsin Central Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

At North Fond du Lac the defendant had an arrangement for handling cinders. The arrangement is the only one of its kind operated by the defendant. Under one of the defendant's tracks is what is known as the “cinder pit.” On the bottom of the cinder pit, which lies nine or ten feet below the track, are two sets of parallel tracks running east and west. At the north and south of the tracks in the pit are abutments. The east end of the pit is closed. The pit is reached by a curved and inclined track about 300 feet long. There is room in the cinder pit for two gondola cars. When the two cars are in the pit, they come very close together, and are very close to the abutments. In using the pit the cars are at first run partly in, being blocked so that the half farthest in is under the track above. Locomotives on the track above are stopped over the cars in the pit, and the ashes and cinders which are dumped therefrom fall between the rails into the cars below. When the cars are half filled, the block is removed from the wheels, and the cars are allowed to slide down the incline so as to permit the filling of the other half. Owing to the curve and the incline of the track leading into the pit, a chain coupling is used between the cars and the engine when cars are placed in the pit.

The plaintiff's intestate had been employed by the defendant for about nine months as a brakeman. On August 4, 1908, the deceased was assigned to assist, under the switch foreman, at the task of removing the filled cars and of placing empty ones therein. The two loaded cars were removed by the foreman of the regular switch crew with the aid of an engine crew, who had not performed this work before, and an empty car had been placed on the north track. The deceased had meanwhile tended a switch. When the second car was being placed, the deceased assisted and did the uncoupling of the engine from the car. The engine had run the empty car too far into the pit, and it was necessary to back out. When the car was in proper position, it was blocked there by Loucks, the foreman of the regular switch crew, who then stepped back to the north of the car, so that he was about 10 feet from the deceased. The engine was still attached to the empty car by the chain coupling, and it was necessary for the engine to move a little toward the car, so that the pin holding the chain could be pulled out and the engine uncoupled from the car. The space between the drawbars of the car and the engine was about two feet. The deceased stepped from the north between the engine and the car to draw the pin, and was then on that side of the drawbars. He gave by word and sign the signal for “slack the pin.” The foreman communicated the signal to the fireman, by whom it was, in turn, communicated to the engineer. Thereupon the engineer released the brake on the engine and it slowly started toward the car. Loucks, the foreman of the switch crew, was the only person who was observing the deceased. He testified that the deceased, whose back was toward him, pulled the pin; that the chain dropped from the car; that just after the deceased pulled the pin he moved forward between the drawbars of the car and the engine; and that, as he stepped forward, he turned his face toward the engine, and was immediately caught between the drawbars. The engine moved forward, and the deceased was caught and injured and crushed between the drawbars of the car and of the engine. He died almost instantly. Besides the injury to the part of the body caught between the drawbars, the thumb of the right hand of the deceased was injured. The jury found that the negligence of the engineer in slacking the pin was the proximate cause of the death of the deceased, and that it was greater as a contributing cause to his death than the negligence of Boucher himself. They also assessed the damages. This is an appeal from the judgment on the verdict.

Barnes and Marshall, JJ., dissenting.W. D. Corrigan and W. A. Hayes (John L. Erdall, of counsel), for appellant.

Ecke & Hughes (J. E. O'Brien, of counsel), for respondent.

SIEBECKER, J. (after stating the facts as above).

The appellant assails the court's decision holding that the evidence in the case required submission of the issues whether the engineer was negligent in conducting the defendant's business at the time Boucher was injured; if so negligent, whether it was the proximate cause of the injury, and whether such negligence was a greater or less contributing cause in producing Boucher's death than his contributory negligence. The facts of the case controlling these questions are within a narrow compass, and are so interrelated that a reference to them will suffice for the consideration of all the questions presented by these contentions. The foregoing statement of them makes clear what were the duties assigned Boucher and the engineer in conducting the defendant's business at the time of the accident. It is argued that the facts wholly fail to show that the engineer was negligent in managing the engine for the purpose of slacking the coupling chain when signaled so to do by Boucher, and that the accident was wholly due to the fact that the decedent deliberately and negligently stepped into a place of obvious and imminent danger. It is undisputed that the car had been shoved into the cinder pit; that it had been blocked; that the engine had come to a stop; that the chain forming the coupling between the car and the engine was taut so that the coupling pin could not be released without slacking; that the decedent was required in the performance of his duty to step between the car and the engine to do the uncoupling; that it devolved on him to give the signal for slacking the coupling chain to enable him to pull the coupling pin; and that it was the duty of the engineer to move the engine for this purpose when the signal therefor was communicated to him. There is no dispute but that the signal to this effect was communicated to the engineer for this purpose. The switch foreman testifies that the decedent gave the signal for the “slack of the pin,” and that he communicated it to the fireman. The fireman testifies that he communicated it to the engineer, and that he thereupon moved the engine forward. The engineer testifies that he received the signal “to slack ahead,” which implied that he was to proceed until signaled to stop. He states that his recollection of the signal is uncertain. He also testifies that he was fully informed that the car had been blocked, that the engine was required to move forward only a few inches to slack the chain in order to loosen the coupling pin; that a movement of a few inches would suffice and was the only movement toward the car required of the engine; that the last act before moving the engine away from the car was the uncoupling; and that he fully understood all the facts and conditions of the service in which they were then engaged. The court submitted to the jury the question of whether the engineer under the circumstances was negligent in the management of the engine which resulted in a forward movement of several feet and in contact with the car.

The point is made that the engineer had a right to move the engine as he did in response to the signal given him. There is dispute, however, as to what signal he received. The jury evidently found that he received the signal to slack the pin, and that this called on him to move the engine only a few inches. There is evidence of other employés of the defendant in support of this view. Furthermore, the engineer was fully informed of the whole situation and the conditions under which he was acting and knew that he was required to move the engine no more than was necessary to slack the pin. In fact, he moved the engine several feet, and thereby brought about the contact between the engine and the car whereby Boucher was injured. It is evident that the movement of three or four inches of the engine could have been made readily.

However, it is claimed that the engineer had no reason to anticipate that an injury would result from the movement made by the engine. The situation apprised him that Boucher was then between the car and the engine for the purpose of pulling the coupling pin, and that such a movement as was made must result in a collision with the blocked car in the cinder pit. Surely such a movement of the engine was fraught with danger to the decedent, who was in a proper position to perform his service, and the engineer had a reasonable basis for anticipating that an injury might result from such management of the engine. We are led to the conclusion that the facts and circumstances of the case required that the question of the engineer's negligence in the management of the engine should be submitted to the jury as was done in the first question of the special verdict. The court informed the jury that this question included the inquiry as to whether the engineer was negligent in moving the engine forward to remove the strain from the coupling chain, and thus to free the coupling pin so that it could be pulled. The instructions in this respect fully informed the jury of the scope of this issue, and of what it embraced. The court in calling the jurors' attention to the evidence on this subject did not restrict the jury to the portion he alluded to, but instructed them to take into consideration all the evidence bearing on the inquiry so submitted to them. The instructions so given were free from undue restrictions on the jury in their deliberations, and in...