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

• Decision Date: 09 October 1934
• Citation: 216 Wis. 111,256 N.W. 703
• Court: Wisconsin Supreme Court
• Parties: DRETZKA v. CHICAGO & N. W. RY. CO.

216 Wis. 111

256 N.W. 703

DRETZKA

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

Supreme Court of Wisconsin.

Oct. 9, 1934.

Appeal from a judgment of the Circuit Court of Milwaukee County; Daniel W. Sullivan, Circuit Judge.

Action by Jerome C. Dretzka, administrator of the estate of Mikolaj Dretzka, deceased, against the Chicago & North Western Railway Co. Judgment for plaintiff, and defendant appeals.--[By editorial staff].

Reversed and remanded, with directions.

Jerome C. Dretzka, as administrator of the estate of Mikolaj Dretzka, deceased, commenced this action on June 11, 1930, against the Chicago & North Western Railway Company under the Federal Employers' Liability Act (45 USCA § 51 et seq.) to recover damages sustained by Mikolaj Dretzka resulting in his death due to the negligence of the defendant company.

On April 30, 1929, at 7:25 o'clock a. m., Dretzka, then sixty-six years of age, was a crossing flagman at the Rawson avenue crossing in the city of South Milwaukee. At that time Mike Dubovich was driving a Chrysler sedan in an easterly direction over the most westerly or north-bound main track. Dubovich, who had been accustomed to drive a Ford, had procured the Chrysler the day before and was unfamiliar with the gear shift. As he approached the track, he stopped and then started. Whether he stopped twice or three times is not clear. He stopped at least twice in a place of safety. When the on-coming train was a short distance away, traveling on the left-hand or westerly track, Dubovich proceeded upon the tracks. The engine struck the rear part of the Chrysler car and threw it against Dretzka with such force that he sustained injuries from which he later died. Dretzka was located on the east side of the easterly main or south-bound track, in the center of the street, flagging traffic. The engineer saw him in that position during the last several hundred feet that the locomotive traveled before the collision.

The case was submitted to the jury upon a special verdict. The jury found that the engineer was not negligent as to speed or blowing the whistle, but was negligent with respect to lookout and in failing to make timely application of the brakes, and that such negligence was a proximate cause of deceased's injuries. They found the fireman was negligent with respect to lookout, which was a proximate cause of deceased's injuries. The jury also found Dretzka negligent with respect to his own safety but that such negligence was not a cause of his death; found that Dretzka's negligence as compared with the entire negligence of defendant's employees was 10 per cent., and assessed the damages at $6,000. Judgment was entered upon the verdict on January 13, 1934, from which the defendant appeals.

J. F. Baker and J. E. Krueger, both of Milwaukee, for appellant.

Cannon, Newman & Fox, of Milwaukee, for respondent.

ROSENBERRY, Chief Justice.

[1] The principal question raised here is whether or not the defendant failed in the performance of any duty which it owed Dretzka. In submitting the question of negligence to the jury, after defining negligence, the trial court further instructed the jury: “You are instructed that the employees of the railway company, in charge of the locomotive, are required to exercise ordinary care to keep a proper lookout as to the track and intersecting streets and highways to avoid collision with persons or vehicles, and to observe the streets and highways adjacent to the tracks sufficiently to enable them to ascertain whether persons or vehicles are approaching, or about to approach, the track or are in dangerous proximity to the track, and if such persons or vehicles are in danger of being struck by the locomotive or train, they must do what ordinarily careful and prudent employees, charged with a like duty, would do under like or similar circumstances to avoid doing injury to any such person.”

The court further instructed the jury that the defendant's employees have a right to assume that a person approaching the track will seasonably exercise his senses of sight and hearing and act accordingly.

While the instruction of the trial court states a correct rule of law with respect to the duty which the defendant owes travelers, it is not directly applicable to the facts in this case. The jury were not interrogated as to negligence with respect to Dubovich.

[2] In the consideration of this case, we are bound by the decisions of the federal court construing the Federal Employers' Liability Act. Western & A. R. R. v. Hughes, 278 U. S. 496, 49 S. Ct. 231, 73 L. Ed. 473;Atchison, T. & Santa Fe Ry. Co. v. Saxon, 284 U. S. 458, 52 S. Ct. 229, 76 L. Ed. 397.

In Chesapeake & Ohio R. Co. v. Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914, which was an action...