Clary v. Chi., M. & St. P. Ry. Co.

• Citation: 141 Wis. 411,123 N.W. 649
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 07 December 1909
• Parties: CLARY v. CHICAGO, M. & ST. P. RY. CO.

141 Wis. 411

123 N.W. 649

CLARY

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

Supreme Court of Wisconsin.

Dec. 7, 1909.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by Nellie Clary, as administratrix, etc., against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant, and plaintiff appeals. Reversed.Wigman, Martin & Martin, for appellant.

Greene, Fairchild, North & Parker, for respondent.

TIMLIN, J.

After hearing the evidence in this case, the jury returned a special verdict finding that the plaintiff's decedent was on December 14, 1906, while in the employment of defendant as engine driver on a switch engine in the railroad yard at Marinette, killed by a collision between this switch engine and a freight train coming into said yard. The engine driver of the freight train was guilty of negligence which was the proximate cause of the death, and there was no want of ordinary care on the part of deceased which contributed proximately to cause his death. The damages to the plaintiff (his widow) were fixed at $5,000. The trial court, on motion, changed the answer of the jury to that question of the special verdict relating to the contributory negligence of the deceased, so as to find the deceased guilty of contributory negligence, and then rendered judgment on the verdict so amended in favor of defendant. The only question presented upon this appeal is whether such action of the trial court was authorized upon the evidence presented; or, in other words, whether it appeared affirmatively and from undisputed evidence that the deceased was guilty of a want of ordinary care which proximately caused or contributed to cause his death. The correct inquiry in such case where the burden of proof is upon defendant is not whether there is evidence to support the finding of the jury, because that may be supported by lack of evidence in whole or in part, but whether there is uncontroverted evidence which supports the ruling of the trial court in changing such an answer. Omitting the evidence bearing solely upon the negligence of the defendant, for its negligence is upon sufficient evidence established by the verdict and consisted in running a regular freight train into Marinette and through the yard limits on a foggy day at a high rate of speed, notwithstanding the rule hereinafter quoted, we proceed to consider the evidence bearing directly or remotely upon the contributory negligence of the deceased. It seems best to consider this evidence under separate heads.

Yards.--Some confusion on this subject is caused by the rules and time cards, which speak of trains going from Marinette towards Crivitz as trains going east, and those coming into Marinette from the direction of Crivitz as trains going west, when, in fact, according to the true direction, the first-mentioned trains are going more nearly west and the last-mentioned trains more nearly east. The yard in which deceased operated his switch engine under the orders of the yardmaster, Graham, was more than three miles long, and its termini were marked by boards or signs alongside the track bearing the words “Yard Limits.” Identifying the west end of this yard one of the rules said: “Menominee and Marinette yard limits extend to yard limit board east (west) of Park Mills siding switch east (west) of Marinette.” The switch for Park Mills siding is about 1 1/4 miles from Marinette depot. Between the Marinette switch, a short distance west of Marinette depot and Park Mills siding, there was but a single track more than a mile in length, which connected between the side tracks at Marinette and those at Park Mills, and was included in the designated yard and used for yard purposes, and also by regular passenger and freight trains coming into Marinette from the west and leaving Marinette going west.

Rules.--It will not be necessary to consider all the rules offered in evidence and before the jury. Some of them are mere generalities, declaratory of the common-law duties of employés engaged in a hazardous service. Some relate to the duties of such employés to provide themselves with signals and familiarize themselves with the printed rules, and some have no special application to the question raised on this appeal. In that part of rule 56a, relating to yard limits at Marinette, occurs the following: “All trains will move under perfect control within these limits so as to make an accident impossible.” It was sufficiently shown that the incoming train, which collided with the switch engine of the deceased, was a “train” within the meaning of this rule, and that it did not conform with this rule in the least, and it was also sufficiently shown that the switch engine of the deceased with its two freight cars en route for Park Mills siding for the purpose of switching was not a “train” within this part of the rule. This sentence of the rule is not, however, to be taken literally, so as to cast the absolute duty of making all accidents impossible upon the defendant or its employés, but may be taken to mean, at least so far as the instant case is concerned, that the rate of speed and consequent degree of control shall be such as to prevent an injury having for its proximate cause that which is, under the circumstances in evidence, an excessive rate of speed and the consequent lack of control. So far as defendant's negligence is concerned, this is settled by the verdict. Rule 56a also contains the following: “Transfer men and yard crews working within yard limits must move at a rate to insure safety, and during weather that obscures the view must move under flag protection.” This rule did not apply to the incoming train, but did apply to the deceased and those constituting the switching crew. The words, “to insure safety,” must have a similar construction to the words, “to make an accident impossible,” in the rule first quoted. Much evidence was received bearing upon the construction which should be given these rules and relating to the mode in which business was transacted under these rules by those who presumably knew the rules. With reference to the first-quoted rule, it was testified that this rule was often and perhaps commonly disregarded by freight and passenger trains coming into Marinette, and it was understood that such trains had a right of way as against switching engines, but, while this might be evidence tending in some degree to show the abrogation of the rule by long-continued disregard or nonuser with acquiescence of all immediately connected with its enforcement, the construction of that rule could not be affected by such evidence because of its clear terms including all trains entering and passing through the yard limits. Graham was a yardmaster representing the defendant in charge of the yards in question, and directed the operations of the deceased and his associates, and had been so engaged for 6 1/2 years. For the purpose of enforcing rules, acquiescing in the abrogation of rules, or construing ambiguous rules by customary action thereunder, he must be held to have represented the defendant. He testified that never during the entire period of his service had he used a flag in going from Marinette siding to Park Mills siding, and being questioned whether he had ever before gone out under conditions existing at the time in question, he answered: “Well, I can't answer that intelligently, because I might not have seen a day like that before; that is, the conditions would be different, it would be either foggier or not so foggy, and, when it was any foggier than it was that day I always...