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

• Citation: 40 N.W. 394,72 Wis. 523
• Parties: DUAME v. CHICAGO & N. W. RY. CO.
• Decision Date: 08 November 1888
• Court: United States State Supreme Court of Wisconsin

72 Wis. 523

40 N.W. 394

DUAME

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

Supreme Court of Wisconsin.

November 8, 1888.

Appeal from circuit court, Oconto county.

This was an action brought by Mary A. Duame, administratrix, against the Chicago & Northwestern Railway Company, to recover damages for the killing of her husband at a railroad crossing. The court upon the evidence directed a verdict for defendant. Plaintiff appeals.E. H. Ellis, for appellant.

Jenkins, Winkler, Fish & Smith, for appellee.

ORTON, J.

This is a brief, yet substantially correct, statement of the facts: The track of the defendant's railway crosses Main street in the city of Oconto, nearly north and south. Near the south side of the street there are two side tracks, with switches, and about 70 feet north of the street there is another side track, with switch running south. There is a pile of wood 50 feet long, and 8 or 9 feet high, on the east side of the defendant's right of way, extending north from the north side of the street; and the ground for some distance east of the track north of the street is about 4 feet higher than the track, and there is a house about 40 feet north of the street, and a short distance east of the wood-pile. The train, which consisted of the locomotive, two box. cars, and a caboose, had come out on the main track from one of the side tracks, and run north across the street; and, when it had passed about two or three car-lengths north of the street, it stopped, and immediately backed down towards the street. During this time the engineer and fireman were on the engine, the conductor stood in the door of the caboose on the east side, one brakeman stood upon the north platform of the caboose, and the other brakeman stood near the switch, south of the street. There was no flag-man at this crossing, and no one on the rear end of the train, to give warning to those about to cross the track at that place, and whether the bell was rung was a fact in dispute; witnesses for the defendant testifying that it was, and other witnesses testifying that they did not hear it. The deceased, in a one-horse vehicle, was driving west on Main street, towards his home, about seven miles in the country; and had approached within seven or eight rods of the crossing from the east, when the train passed over it, and went on north, out of his sight, and he continued on a trot towards the crossing, and, as his horse stepped on the track, the rear car of the train was very near it, and whether he attempted to back or turn around or pass over the evidence is uncertain, but his carriage came in contact with the rear car, and he was thrown under its wheels, and killed. The conductor of the train, from where he stood, in the east door of the caboose, saw the deceased as he was approaching the crossing, and gave no signal or warning to the engineer to stop the train, as he might have done, and took no precaution whatever to avoid the accident; and, when asked on the trial what he did, said that “he did nothing at all; if he hadn't sense enough, let him go.” He could have kept watch of the deceased, but did not, and stood there looking over his way-bills, and did nothing. The brakeman standing near the switch, on the south side of the street, also saw the deceased approaching the crossing, and knew that the train was backing down towards the crossing, and yet gave no signal or warning to the engineer in time to stop the train before it came in contact with the deceased; and the other brakeman, standing on the front platform of the caboose and near the engineer, and who gave the signal to the engineer to stop the train when it was stopped, and whose business it was to look to the other brakeman for signals, was not looking that way all of the time. If the brakeman at the switch gave any signal to stop in time to prevent the collision, he did not see it, because not looking that way at the time, and yet it was his business so to look. The jury rendered a verdict for the defendant, by the direction of the court, and of course this is the error complained of on this appeal.

The evidence tending to prove the negligence of the employes of the defendant is very strong, if not conclusive; and we infer, therefore, that the court directed the verdict on the ground of the contributory negligence of the deceased. We are asked by the learned counsel of the appellant to hold, in view of the evidence, that the killing of the deceased was not only the result of the want of proper care on the part of the conductor of the train and of other employes of the defendant, but that it was occasioned by their gross negligence, recklessness, and criminal misconduct; and that, therefore, the question of the contributory negligence of the deceased is not in the case. The conduct of the conductor was certainly very reprehensible, and, in connection with his own explanation of it, evinces a cold-blooded indifference which, I am happy to say, is not common among railway employes. But, without a finding by the jury on such an important question of fact, we would not feel warranted in first passing upon it. The evidence to such end ought to be perfectly conclusive and overwhelming, and we can scarcely believe that the omission of the conductor to signal the engineer to stop the train, until he could be assured of the safety of the deceased, was willful, or that he apprehended such a collision as the result of it. This is most...