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

• Decision Date: 16 March 1897
• Citation: 95 Wis. 460,70 N.W. 665
• Parties: CURTIS v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

95 Wis. 460

70 N.W. 665

CURTIS

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

Supreme Court of Wisconsin.

March 16, 1897.

Appeal from circuit court, Outagamie county; Charles M. Webb, Judge.

Action by Ella Curtis, administratrix of the estate of William J. Curtis, deceased, against the Chicago & Northwestern Railway Company, for the death of plaintiff's intestate. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action was brought by the plaintiff, as administratrix of the estate of her deceased husband, William J. Curtis, to recover, against the defendant, the pecuniary damages sustained by reason of his death, caused, as alleged, by the negligence of the defendant company, while he was in its employ as yard switchman at Appleton, Wis. It is alleged that, as such switchman, it was the duty of the deceased, among other things, to assist in making up trains and switching cars, and to that end to couple and uncouple them, and that it was the defendant's duty to provide safe and suitable appliances for that purpose, and a safe and suitable place in which to do the same; that at the time, etc., the defendant kept and maintained between the rails of one of its tracks in said city, and near to one of its switches, a guard rail, about eight feet long, over and upon which track and guard rail cars were switched, moved, coupled, and uncoupled, in doing the defendant's business; that said guard rail was kept and maintained by it in such a careless and negligent manner that the space between the guard rail and the main rail was just wide enough to admit the sole and heel of a boot or shoe, and allow the same to become caught and fastened between said rails, and that said space was negligently and carelessly allowed by the defendant, its agents, etc., to remain without proper or sufficient blocking or protection to prevent the feet of its employés from becoming so fastened therein as aforesaid; that on April 30, 1895, the deceased, while in the line of his said duties, switching and uncoupling cars in the usual manner, and while in the exercise of ordinary care on his part, was caught and firmly held in said space by his left foot unavoidably slipping into the same, firmly holding the deceased therein upon and between the tracks in such a manner that the cars of the defendant, then and there moving along said tracks, ran over, crushed, and killed said deceased, etc. The defendant admitted the keeping and maintaining of the guard rail, and alleged that it was properly fastened and blocked, and also admitted that the deceased, while coupling cars, fell near said guard rail, and received injuries, by the trucks of cars passing over and inflicting injuries on him, of which he died; and denied all other allegations. At the trial the evidence disclosed that the deceased was in the employ of the defendant as yard switchman at Appleton, and had been for about two years, and had been engaged in railroading, working as switchman, upward of nine years. He had worked over and along by the guard rail in question every day during his employment by the defendant. There was a large number of switches, switch guards, and guard rails in the yard. The railway runs at the point in question from the southwest towards the northeast, and the accident happened in a bright, clear day. The work then in hand was to get five or six cars from the northerly track, and kick one car up the siding, between said northerly track and the main track, and the others were to be set back on the track they were taken from. The engine was headed south, and the car to be set out was the southern one of the string, and the string was pulled out upon the middle or passing track, and the cars were pushed south on that track. As the string was pushed south on the passing track, Curtis, the deceased, was just getting down on the left-hand, or southeast, side of the cars, towards the main track. The witness Wood, who was working with Curtis, was on the top of the end car, and the last car, which, as they backed south, was to be uncoupled and left on the passing or middle track. Several witnesses testified, on the part of the plaintiff, as to the manner in which the accident happened; and their evidence tended to show that Curtis, in coming out, got his foot caught in the guard rail, and fell, out from between the cars, on his left side, and partly on his back. One witness testified: That Curtis “got down off the box car, went in between the cars and came out again, and picked something up and went back in again (the cars being in motion). That witness was about 100 feet distant from him, and next saw him when he fell out from between the cars, and then the cars passed over him. After he went in again the train moved about ten feet before he fell out, and after he fell out they moved about fifteen feet before stopping. That he saw the cars passing over him, and told the fireman to stop. Curtis said he ‘got caught,’ and pointed over towards the guard rail.” Cramer testified that he saw Curtis come out from between the cars, and he picked something up and went in again. “The next time I saw him, he was hanging onto the car ahead of him,--the last car south. I saw he had hold of the car, or hold of something on the car, and it seemed to draw him forward. * * * His body was leaning further forward than his feet. I could not tell if he was moving his feet. * * * He might have remained in that position four or five seconds. The car he was holding onto spread from the others. When he let go, he fell down. I think he was on his left side. That would be facing me. I could not tell where his feet were when he fell. I did not see him stumble or catch his foot. The train was going about as fast as a man would walk.” Hoffman testified that he was within 12 feet of Curtis when he was injured, on the side of the main track. “After he picked up the stone he went in between the cars, which were moving slowly,--I guess he was trying to knock the pin out,--and he got caught on the rail. I saw it. And the train slowly moved and knocked him over to the south, with his body outside and his feet inside. He made an effort to move his feet, but could not. He seemed to be caught at the end of the guard rail towards the depot. All that I noticed was that his feet were caught, and the cars pushed his body away. I did not look which foot was caught. I did not notice both feet. He was standing with both feet between the two track rails.” Other evidence was produced, circumstantial and otherwise, tending to show that Curtis got his foot caught between the guard rail and main rail, and, being unable to get it out, the wheel of the car passed over his legs, and cut them off between the ankles and the knees, in a diagonal manner; and the shoe of his left foot was torn and crushed, and the sole partly torn off, and the other shoe was also somewhat torn. Small pieces of bone, and blood spots, were relied on as showing that the injury occurred near the south end of the guard rail. Considerable evidence was produced tending to show that the guard rail was not properly blocked to prevent switchmen and other operatives getting their feet caught between that rail and the main rail; that the blocking was defective and worn, and did not come up near enough to the top of the rails; that it was loose, and when stepped on it would give way, and teetered up and down; that the blocking was old, and much slivered, and insufficient and defective. There were in defendant's yard 41 to 44 blocked switches, and about 250 blockings. Evidence was also produced tending to show that it was a common thing, and indeed customary in this yard, for switchmen to go in between the cars when in motion, to couple or uncouple them, and that such custom was known to and approved by the yard master. It appeared, also, that when a switchman is uncoupling cars he has control of the movements of the train, and may have it stopped, upon his signal, or he may go in between the cars for that purpose, when in slow motion. Wood testified on behalf of the defendant: “I tried to uncouple it, but could not...