Ditberner v. Chicago, Milwaukee & St. Paul Railway Co.
| Decision Date | 02 September 1879 |
| Citation | 2 N.W. 69,47 Wis. 138 |
| Parties | DITBERNER v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Columbia County.
The plaintiff was a section hand employed by the defendant railway company to work about its depot yard at Portage City. The yard is traversed by several tracks. While plaintiff was engaged, under the direction of his foreman, in driving a spike to hold a rail of one of the tracks in such yard, an engine of the defendant, used in the yard to make up trains backed cars along the track on which the plaintiff was at work with his back towards the train, and struck and injured him. This action was brought to recover damages for such injuries. The complaint charges that the injuries were caused by the negligence of defendant's servants and employees in failing to ring the bell on the engine (known as a switch engine), or to give any signal of the approach of the train to the place where plaintiff was at work. The answer denies that defendant's servants were negligent, and alleges that plaintiff's injuries were the result of his own negligence.
The jury found specially that plaintiff knew when driving the spike that the switch-engine was switching cars and making up trains in the yard, and was liable to be run on any track but did not know that cars were being put on the track upon which he was at work; that it was the custom and usage for the engineer to ring the bell on the switch-engine whenever the engine was in motion; that the bell was rung and heard by the plaintiff five minutes before he was injured, as the engine passed along a side-track to his rear, but was not rung after the engine commenced backing towards the plaintiff; that plaintiff had no reason to assume that it would not be run on the track where he was at work; and that it was necessary for the plaintiff, when driving the spike to stand with his back to the approaching train, but that when taking such position he did not look or listen therefor, although had he done so he could have avoided the injuries.
The jury further found that, under all of the circumstances proved, the plaintiff was not guilty of any want of ordinary care which contributed to his injuries, but that the engineer in charge of the switch-engine was negligent in not ringing the bell when he was backing his train towards the plaintiff, and that such negligence caused the injuries complained of.
The court denied motions on behalf of the defendant for judgment in its favor on the special verdict and for a new trial, and gave judgment for the plaintiff for the damages assessed by the jury. The defendant appealed.
Judgment affirmed.
Melbert B. Cary, for appellant, contended that ch. 173 of 1875 is void because in violation of that principle of constitutional law which prohibits unequal and partial legislation upon general subjects. Cooley's Con. Lim., 389-394; Wally's Heirs v. Kennedy, 2 Yerg., 564; Durham v. Lewiston, 4 Greenl., 140; Holden v. James, 11 Mass., 396; Piquet's Case, 5 Pick., 64; Budd v. The State, 3 Humph., 483; Deppe v. Railway Co., 36 Iowa, 52; Schroeder v. Railway Co., 41 id., 344; Durkee v. Janesville, 28 Wis., 464; Bull v. Conroe, 13 id., 238-244. He also discussed other questions raised by the record.
T. L. Kennan, for respondent.
1. The learned counsel for the defendant maintains that the statute under which this action was brought (chapter 173, Laws of 1875), is unconstitutional and void. The statute is as follows: "Every railroad company operating any railroad or railway, the line of which shall be situated in whole or in part in this state, shall be liable for all damages sustained within this state by any employee, servant or agent of such company, while in the line of his duty as such, and which shall have been caused by the carelessness or negligence of any other agent, employee or servant of such company, in the discharge of, or for failing to discharge, their proper duties as such; but this act shall not be construed so as to permit a recovery where the negligence of the person so claiming to recover materially contributed to the result complained of."
It is claimed that this statute violates that principle of constitutional law which prohibits unequal and partial legislation on general subjects, and is therefore void. It is conceded that the act would be a valid exercise of legislative power were its provisions restricted to cases of injury caused by the negligent operation of railways. But it is assumed that the statute is not so restricted; that by its terms it seeks to make a railway company liable for an injury to an employee caused by the negligence of another employee, although the negligent act may have no connection with the operation of the railway of the company. The argument is, that because the same liability is not imposed upon other corporations, the statute is void within the rule of Durkee v. Janesville, 28 Wis. 464.
Iowa cases have been cited which seem to assert the doctrine contended for. The statute of that state under which those cases were decided, corresponding with our chapter 173 of 1875, limits a recovery to cases where the injuries were caused by the negligent operation of railways. In view of that limitation, the assertion of the above doctrine in those cases seems to be obiter. It was unnecessary that the court should determine what its ruling would be were a different statute under consideration, or to rule upon a hypothetical statute. We entertain the highest respect for that learned and very able court, and...
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