Delvaux v. Kewaunee, G. B. & W. Ry. Co.

• Decision Date: 30 April 1918
• Citation: 167 Wis. 586,167 N.W. 438
• Court: Wisconsin Supreme Court
• Parties: DELVAUX v. KEWAUNEE, G. B. & W. RY. CO.

167 Wis. 586

167 N.W. 438

DELVAUX

v.KEWAUNEE, G. B. & W. RY. CO.

Supreme Court of Wisconsin.

April 30, 1918.

Appeal from Circuit Court, Brown County; Wm. B. Quinlan, Judge.

Action by Jules Delvaux against the Kewaunee, Green Bay & Western Railway Company. Judgment for defendant, and plaintiff appeals. Reversed.

This action is brought by the plaintiff to recover for his expenses and the loss of services arising from an injury to his son Ernest in being run over by a freight car of defendant on its tracks in the city of Green Bay, Wis., May 5, 1914. Another action was started on behalf of the son to recover for his injury arising from the same accident, and was tried in November, 1914, before Hon. Henry Graass, circuit judge, who set aside a special verdict upon which judgment might consistently have been rendered in favor of the plaintiff in that action, and judgment for the defendant was entered. On appeal to this court and by a divided court such judgment was affirmed. 161 Wis. 554, 154 N. W. 380.

On the trial of this case in May, 1916, by a special verdict the jury found as follows:

(1) Defendant's brakeman uncoupled the rear end section of the train while the train was still in motion; (2) that after such uncoupling the rear end section continued in motion; (3) that Ernest Delvaux was run over and injured by the rear end section; (4) that the defendant company failed to exercise ordinary care in that it did not give a warning to the boy of the approach of the rear end section; (5) that such failure was the proximate cause of the injuries; (6) that no want of ordinary care on the part of Ernest proximately contributed to his injuries; (7) that $2,500 would reasonably compensate the plaintiff herein for his loss.

On appropriate motions the trial court, after a full discussion of the testimony in the case, held that the evidence to sustain plaintiff's theory as to defendant's negligence is so incredible and unreliable and opposed to the physical facts established by uncontradicted evidence in the case, and that there was contributory negligence by the boy, that the verdict cannot stand, and thereupon directed that the answers to each of the respective questions other than the last in the special verdict should be reversed, and the assessment of damages should be stricken out, and then upon the verdict so changed the defendant should have judgment. From the judgment thus entered the plaintiff has appealed to this court.

Winslow, C. J., and Vinje and Rosenberry, JJ., dissenting.

M. E. Davis, of Green Bay, for appellant.

Greene, Fairchild, North, Parker & McGillan, of Green Bay, for respondent.

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

[1] The plaintiff contends that under the evidence in this case the following are the facts: That Ernest, the injured boy, then about nine years and three months old, with his brother George, about a year and seven months older, and a boy Lawrence Van Husen, about nine years old, were playing near a stone pile alongside defendant's tracks throwing stones into a marsh on the other side of the track as a freight train from the west came by them; that a member of the train crew came from the forward end of the train, passed by them as they were at the stone pile, went towards the rear end, and separated the two sections, leaving the rear one with about six freight cars and the caboose; that the forward end then pulled out towards the east, and the boy Lawrence ran across the track between the two sections, and that Ernest while watching the forward end of the train pulling away, followed him without noticing that the rear section was still in motion, and as he was between the rails his brother George hollered to him, he hesitated, and was struck and run over by the wheels of the front truck only of the front car of that rear section, and that the rear section then came to a stop; that he crawled out a distance of at least 12 to 13 feet and lay down between the rails of a track parallel with the one on which he was injured; that there was no one on the front end of the rear section to give any warning of its approach; that the right leg was crushed below the knee, requiring amputation; and that all the toes save the little one on the left foot were so crushed and injured that they also were required to be amputated. The right foot was not injured.

We find nothing so incredible or impossible in the recital given by these boys that would have justified the court below had there been no further evidence in the case in determining as a matter of law either that there was no negligence on the part of the defendant or that there was contributory negligence on the part of the boy.

Defendant's claim is that, as the freight train came in by the stone pile, Ernest climbed on one of the moving freight cars, and before the sections were separated, and while so riding, slipped, bringing his left foot upon the top of the rail, and so received his injuries.

To sustain defendant's verdict, or at least to contradict plaintiff's version, defendant contends that in addition to the testimony of the boy Lawrence Van Husen as an eyewitness to the effect that the boy Ernest did climb upon a moving car that there must be considered, under the testimony in this case, to have been established as verities the following:

(1) That portions of the toes of the injured boy were found within one-half an hour after the accident, pressed against the edge of the top or ball of the rail and hanging from there down on the inside of the south rail on the curved track; that the first joint of the big toe was intact, a toe nail plainly visible on that joint and on each of the next two toes, indicating, as claimed by defendant, that the boy's foot must have slipped while riding on the car.

(2) That the toes were found three to five feet ahead of the front wheels of the rear section, thereby indicating that the accident must have been caused by some car ahead of such section, and therefore not as claimed by plaintiff.

(3) That the accident happened about 43 feet east of the stone pile, and not about opposite it, as claimed by plaintiff.

(4) That the train had not been separated before the boy was injured.

(5) That while the injured boy was being cared for just after the injury his brother George in his presence stated that the injury occurred by reason of Ernest trying to catch a ride.

It is frankly conceded by defendant's counsel that the testimony of Lawrence Van Husen is to some extent mistaken. He testified positively that as the train passed the stone pile each of four boys climbed on four several cars as they passed by, the injured boy first, and Lawrence on the last one, that he (Lawrence) rode at least two car lengths east of the stone pile, and that Ernest was still on at that time. This would have placed Ernest at least six car lengths east of the stone pile or at least 200 feet east of where the toes were claimed to have been found on the rail, and manifestly irreconcilable on that point with either plaintiff's or defendant's version of the accident. From his cross-examination on this trial it appears that he testified on the trial of the boy's case that while they were at the stone pile he saw the brakeman go past them on his way to the rear end of the train, thus corroborating the two Delvaux boys on that detail.

As to the first of the alleged verities, viz., the condition and appearance of the toes as found on the track. This condition of the toes as described by the witnesses, showing that the first joint was intact and the skin pressed so tightly on the rail that it apparently kept the blood within the joint, giving it a purplish appearance, may be as well, if not better, reconciled with plaintiff's version than with defendant's for several reasons.

If Ernest slipped from a moving car, it must have been several car lengths ahead of the sixth car, the one which made the head end of the rear section. Maddy, the rear brakeman, testifies that while the train was in motion he was passing on top of the car from the caboose towards the sixth car, where he expected to make the cut, and when on about the fourth car from the rear end he heard a boy scream, he then proceeded...