Callahan v. Chi. & N. W. Ry. Co.

• Decision Date: 05 October 1915
• Citation: 154 N.W. 449,161 Wis. 288
• Court: Wisconsin Supreme Court
• Parties: CALLAHAN v. CHICAGO & N. W. RY. CO.

161 Wis. 288

154 N.W. 449

CALLAHAN

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

June 1, 1915.

Rehearing Denied Oct. 5, 1915.

Marshall, J., dissenting in part.

Appeal from Municipal Court, Langlade County; T. W. Hogan, Judge.

Action by John P. Callahan against the Chicago & Northwestern Railway Company.Judgment for plaintiff, and defendant appeals.Affirmed.

This was an action to recover damages for personal injury.The plaintiff was a locomotive engineer, and was injured in a collision at Aniwa station, on the defendant's line, in February, 1913.Plaintiff was taking his engine, No. 980, from Wausau to Antigo, and was running light.On reaching Aniwa a freight train was overtaken, and it was decided to allow the plaintiff's engine to run ahead of the freight train, which was also destined for Antigo.The plaintiff backed his engine onto a side track, and the other engine, No. 1071, was backed south of the side track switch by its fireman under orders from the engineer in charge of it, so as to permit plaintiff's engine to go ahead.Plaintiff's engine proceeded northward to the station, where a stop was made.EngineNo. 1071 also proceeded northward, and ran into plaintiff's engine as he was about to step therefrom onto the platform, so that he was caught between the engine and the tender and severely injured.The negligence allegedwas that the collision was caused by the fault and negligence of the defendant and its employés in violation of their duties to the plaintiff:

“Because, for the reason, and in that: (a) Said engine No. 1071 was managed, operated, driven, and run by defendant's said other employés in charge thereof in a careless, reckless, and negligent manner; (b) said engine No. 1071 was being managed, operated, driven, and run by defendant's said other employés in charge thereof contrary to and in violation of defendant's rules, regulations, directions, and requirements and the established customs and practices, upon which rules, regulations, customs, and practices, and the compliance therewith, the plaintiff relied.”

The complaint also alleged negligence in failing to ring the bell and sound the whistle on engine No. 1071, and in running said engine at an excessive rate of speed.The two last-named items of negligence do not appear to have been relied on in the trial.There is no allegation in the complaint to the effect that the plaintiff was employed by the defendant in interstate commerce.The answer set forth that the defendant was engaged in interstate commerce, and that at the time of the injury the plaintiff was employed in interstate commerce.The answer also denied negligence on the part of the defendant, and alleged contributory negligence on the part of the plaintiff.The case was submitted to the jury on a general verdict.The jury found for the plaintiff and assessed his damages at $13,000.From a judgment entered in accordance with such verdict, the defendant appeals.

Edward M. Smart, of Milwaukee, for appellant.

Stephen J. McMahon, of Milwaukee, for respondent.

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

The issues involving the real merits of this case were those usually met in the ordinary personal injury action.The difficulties arise largely out of alleged defects in pleading and the charge of the court.

[1] There was no allegation in the complaint that the plaintiff was engaged in interstate commerce at the time he was injured, or that his cause of action was controlled by the federal act of 1908(35 Stats. at Large, 65).The answer set forth that the plaintiff was engaged in interstate commerce at the time of his injury.The complaint was not amended in this regard.The court charged the jury that the uncontradicted evidence showed that the action was governed by the federal law, and submitted the case on this basis.The appellant insists that this was error, and that one cause of action could not be pleaded and another proven and recovery be had on the new cause of action without an amendment to the pleading.The defendant could hardly have been surprised, inasmuch as it pleaded the fact in its answer as the court found it to be.The proof being undisputed, the complaint should be treated as amended as of course to conform to the proofs.Bieri v. Fonger, 139 Wis. 150, 154, 120 N. W. 862, and cases cited;Wabash R. R. Co. v. Hayes, 234 U. S. 86, 34 Sup. Ct. 729, 58 L. Ed. 1226;Graber v. Railway Co., 159 Wis. 414, 150 N. W. 489.There are very persuasive reasons why the rule stated should apply to cases of this kind, where it is often a matter of doubt whether the state or federal law is applicable.

[2] Error is alleged because the court refused to submit the issues in the form of a special verdict.The demand was not made until the evidence was all in on both sides; hence it came too late to enable the defendant to insist on such a verdict as a matter of right.Section 2858, Stats.We would have been better satisfied had the request been granted.There is some ground for complaint on the part of the defendant that it was inconsiderately dealt with.The complaint was drawn on the theory that the federal law did not apply.Subdivision 3 of section 1816,Stats. 1911, was in force when the plaintiff was injured, although it was not at the time of the trial.Under this statute it was the duty of the court to submit a special verdict in cases falling within it.Counsel makes the claim that he assumed that the case would be submitted on a special verdict under the statute as it stood in 1911, and that he did not make a timely demand because he was misled.In the interest of fairness, it would have been entirely proper to have granted the belated request.The matter was one which rested in the sound discretion of the trial judge, and we cannot say that he abused his discretion.

[3] The complaint alleged, as one of the grounds of negligence relied on, that the movement of the engines which resulted in plaintiff's injury was made in violation of the rules of the company.Among the rules offered in evidence was one known as “rule 1063,” which is as follows:

“Do not run an engine in the absence of the engineman without instructions from the master mechanic, unless in some emergency they are instructed to do so by the conductor or some officer in authority.”

On the trial the defendant, in substance, admitted that this rule had been violated, but insisted that it was not liable, because the fireman, in attempting to run the engine in the absence of the engineer, was acting outside of the scope of his authority, and was practically a trespasser, and defendant was not liable for negligent acts done in this way.The respondent then introduced a lot of testimony tending to show that “rule 1063” had been abrogated because of long-continued practice to the contrary and acquiescence in such practice by the defendant.This testimony was objected to because it injected a new issue into the case and one that was directly contrary to one of the allegations of the complaint.The objection was overruled, and the evidence was admitted, and subsequently the complaint was ordered amendedby the court so as to expressly allege that the rule had been abrogated.These rulings are complained of.No affidavit of surprise was made, and we think the matters complained of rested in the discretion of the court.It would have been a more orderly proceeding to have amended the complaint first and then offered the evidence, but we do not see how the failure to pursue the regular practice in the instant case did any harm.The error, if there was one, was immaterial for reasons that will hereafter be stated.

Coming to the merits of the case, it appears to us that there was very little evidence that the plaintiff was guilty of contributory negligence, and that negligence on the part of the defendant was so clearly established that there was no question to be submitted to the jury in reference to it.

[4] If we admit defendant's contentions that rule 1063 was not abrogated, and that the fireman Krueger was acting outside the scope of his authority, we see no escape from the conclusion that Engineer Mollitor was negligent in directing the fireman as he did and in failing to operate the engine himself.He was not only violating rule 1063, but also another rule of like tenor which applied specifically to engineers.The fireman was more or less under his control, and could at least plead the excuse that he was acting under orders from his immediate superior.The engineer had no such excuse to offer, and the allegations of the complaint were broad enough to admit proof of negligence on his part.

[5] But we think the fireman was not acting without the scope of his authority so as to exempt the employer from liability for his acts.It was his duty to be on the engine to assist in running it, keeping a lookout, ringing the bell, and firing.In doing what he did he was attempting to further his master's business.The movement was a proper one if made in a proper manner.The fireman was simply attempting to do too much in endeavoring to perform his own legitimate duties and those of the engineer as well.In attempting to carry the extra load he was doing what he had been forbidden to do, assuming that the rule was in force, and probably what he should not have done if the rule had been abrogated.It seems pretty obvious that two men should have been on this engine while the movement was being made, in order to keep a proper lookout.

Counsel for defendant conceded on the argument that, under the rule of the Daley Case, 145 Wis. 249, 129 N. W. 1062, 32 L. R. A. (N. S.) 1164, the fireman was not acting outside the scope of his authority to the extent that defendant was not liable for his negligence, but insists that this was an extreme case not properly decided, and should not be followed.In the Daley Case the baggageman threw a tramp, who was stealing a ride, off a car while in motion.It was his...