Cottrill v. Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 28 November 1879
• Citation: 3 N.W. 376,47 Wis. 634
• Parties: COTTRILL, Administrator, v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY
• Court: Wisconsin Supreme Court

3 N.W. 376

47 Wis. 634

COTTRILL, Administrator, v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY

Supreme Court of Wisconsin

November 28, 1879

APPEAL from the County Court of Milwaukee County.

Action for an injury to the plaintiff's intestate resulting in his death, alleged to have been caused by defendant's negligence. At the time of the accident, the deceased was a locomotive engineer in defendant's employ, and was engaged in operating a switch-engine in defendant's yards at the city of Milwaukee; and the injury was caused by a collision between the said engine and a train on defendant's road. The complaint alleges that about eight or nine o'clock on the evening of a certain day, the deceased had made up a train of about thirty freight cars and, in the line of his duty, was proceeding west from said yards, upon one of defendant's tracks, with said freight cars drawn by his engine, within the limits of the city, for the purpose of backing said train in on the side tracks; that while said engine and train were thus proceeding westward at a rate of speed not greater than two or three miles per hour they were met by another of defendant's trains consisting of five freight cars and a locomotive engine backing up from the west on the same track at the rate of eight or ten miles per hour, without any signal given by whistle, bell or otherwise, and without any lights being displayed on the rear end of said train; that the rear car of said eastward bound train was backed with great force and violence against the engine of the deceased; that when said train was first discovered by the deceased, it was distant from six to eight car lengths; that as soon as it was discovered by him, he instantly reversed his engine; and that while he was standing upright in the cab of said engine, with his right hand on the reverse lever thereof and his left hand on the throttle lever, and instantly after such reversal of his engine, the collision of said trains occurred. The other allegations of the complaint need not be stated. The answer denies all negligence on defendant's part, and alleges that the accident occurred through the lack of care and diligence on the part of the deceased.

There was a special verdict, consisting of answers of the jury to sixteen questions submitted them by the court; and there was no general verdict. The questions and answers regarded by this court as of importance upon this appeal, are recited in the opinion.

Plaintiff moved to set aside the verdict and grant a new trial, upon various grounds not important here. The court denied the motion, and directed judgment in favor of the defendant, upon the verdict. Plaintiff appealed from the judgment.

Judgment reversed with costs and cause remanded for new trial.

For the appellant, there was a brief by Murphey & Goodwin, and oral argument by Mr. Murphey. They contended, among other things, that the only fact found from which negligence of the deceased might be inferred, was that in the first finding, viz., that the deceased, after seeing the signal to stop and reversing his engine, might have jumped from the engine before the collision. But, (1) This finding was wholly unsupported by the evidence. (2) It was the duty of the court to instruct the jury that if the deceased was placed, without negligence on his part, in a position of danger, he was not responsible, as for contributory negligence, for an honest though erroneous exercise of judgment in getting out of the danger. Pa. R. R. Co. v. Werner, S.Ct. Pa., July 9, 1879; Schultz v. Railway Co., 44 Wis., 644. And if this instruction had been given, it would have been impossible for the jury to have rendered this finding.

For the respondent, there were separate briefs by Melbert B. Cary and Gregory & Gregory, and oral argument by Alfred L. Cary and Charles N. Gregory. They contended, among other things, that there was no ground for saying that the finding by which the jury declared that carelessness of the deceased materially contributed to the accident, rested wholly upon the finding that he might, in the exercise of ordinary care and prudence have gotten from the locomotive; that the former finding was entirely independent of the latter, and was sustained by abundant evidence tending to show that the deceased acted negligently, not only in failing to use the ordinary and proper means of self-protection after the danger had become obvious, but also in exposing himself and train to the danger; that the evidence was such that the jury might well find that the deceased was negligent in going out upon the come-in track, instead of either using the go-out track at that time, or waiting until the outward bound train on that track had left, and then using the same track; that if the collision in this case had resulted in injury to the engineer of the train with which the deceased collided, and such engineer had brought suit, no jury would have hesitated to hold this defendant liable on the ground that Cottrill was guilty of negligence in that particular, and the court could not have set aside the finding, as not sustained by evidence; and that a like finding in ...