Colf v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 16 March 1894
• Citation: 87 Wis. 273,58 N.W. 408
• Parties: COLF v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: Wisconsin Supreme Court

87 Wis. 273

58 N.W. 408

COLF

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

Supreme Court of Wisconsin.

March 16, 1894.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by Charles F. Colf against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Action for personal injuries. The plaintiff was an employe of defendant in its switch yards at Elroy, Wis., for about 20 months prior to the 27th of November, 1890, when the accident happened. Up to the 24th of November he had been helper in the night crew in the yard. The night crew consisted of the yard foreman, a helper, an engineer, and a fireman. They used an ordinary road engine for switching purposes, and their general duties were to switch cars, and make up trains, and put them in the proper places. Their hours of labor were from 6 p. m. to 7 a. m. The foreman checked the numbers of the cars, saw where they belonged, directed the placing of cars and trains, and assisted in switching and making up trains. The helper switched cars, coupled and uncoupled them, and assisted in making up trains. The engineer and fireman operated the engine. On the 24th of November the plaintiff was promoted to be foreman of the night crew, and a green hand was put in as helper. There were 7 or 8 switch tracks in the yard, and some 15 or 20 switches and switch stands. At about 10:40 p. m. on the night of November 27th, a dining car and another coach were standing on one of the switch tracks in the yard adjoining the main track, and it became necessary to move them out on the main track. Between this switch track and the main track, and opposite the dining car, there was a stub switch stand, which was spiked in position, and had never been used. The arm of the switch stand was of iron, and projected towards the main track at a height of about 2 feet about the ground. The end of the arm was turned upward to make a handle, and was but 2 feet 7 inches distant from a line drawn vertically from the nearest rail of the main track. The switch engine and crew were at the depot some 175 feet or more distant on the main track, and they started to do this switching, all being on the engine, the plaintiff standing in the gangway on the side next the switch track, and the helper on the other side. The plaintiff was giving the new helper some instructions as the engine moved along. There were steps on each side of the gangway, and plaintiff was standing on the step on his side. As they got to the dining car, plaintiff, while still giving instructions, was preparing to “swing off” while the engine was in motion, and jump to the ground, in order to disconnect the bell cord, hose chains, and raise the lever, so as to cut off the dining car from the coach. As he swung his right foot off, and was about to jump, his foot caught on the arm of the stub switch, and “keeled” him over on the ground, and his left foot was crushed by the wheels of the engine. The plaintiff testified that the engine was going at about five miles an hour. The jury returned a general verdict for the plaintiff, with damages assessed at $4,879, and from judgment thereon defendant appeals.S. L. Perrin and R. J. MacBride, for appellant.

T. F. Frawley and W. H. Stafford, for respondent.

WINSLOW, J. (after stating the facts).

It is strongly contended by ...