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

• Citation: 116 Wis. 13,92 N.W. 358
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 28 November 1902
• Parties: EUTING v. CHICAGO & N. W. RY. CO.

116 Wis. 13

92 N.W. 358

EUTING

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

Supreme Court of Wisconsin.

Nov. 28, 1902.

Appeal from circuit court, Kenosha county; E. B. Belden, Judge.

Action by Charles Euting, an infant, by his guardian, against the Chicago & Northwestern Railway Company. Judgment on a directed verdict for defendant, and plaintiff appeals. Reversed.

This is an action for personal injuries. Many of the facts are undisputed. It appears that in May, 1899, the defendant company constructed a temporary spur track along one of the streets of the city of Kenosha running into a public park in that city (in which a library building was being constructed) for the purpose of delivering materials for the construction of the building; that the track was not fenced; that on the morning of July 6, 1899, a switch engine operated by an engineer and fireman run over said track into the park for the purpose of pulling a freight car, which had run off the end of the track, back upon the track; that the engine was attached to the car, and made several attempts to pull it; that some boys were standing in the park nearby, watching the operation, and that a delayed celebration of the Fourth of July was going on; that the plaintiff was one of the boys thus watching, and that he was about nine years of age; that either the fireman or the engineer descended from the cab of the engine, and placed a railroad torpedo on the track about a foot from one of the driving wheels; that the man who placed the torpedo on the track immediately got into the cab again, and the engine was moved over the torpedo, exploding it; and that a flying piece of metal therefrom buried itself in plaintiff's leg, inflicting a serious injury; and that the plaintiff did not know what it was that the man put upon the track. The engineer testified that he did not place the torpedo on the track, and did not know it was there, and the fireman testified that he placed the torpedo on the track for his own amusement, and that the engineer did not direct him to do so, nor knew that it was done. On the other hand, testimony was given tending to show that the engineer himself placed the torpedo on the track. At the close of the evidence the court directed a verdict for the defendant, and from judgment thereon the plaintiff appeals.Baker & Baker, for appellant.

Edward M. Hyzer, for respondent.

WINSLOW, J. (after stating the facts).

The respondent's contention (which seems to have been adopted by the trial court) is, in brief, that the uncontradicted evidence shows that there was no occasion for the use of the torpedo in the transaction of the defendant's business; that it was placed in the care of the engineer, and the fireman had no authority to take it; that the fireman took it without the knowledge of the engineer, and placed it upon the track for his own amusement; that in so doing he was entirely outside the scope of his employment, and hence that his principal is not responsible for the results of his act. If this contention were fully justified by the facts it is difficult to see how the conclusion could be avoided. We agree with counsel that the evidence shows that there was no occasion for the use of the torpedo at this time in the transaction of the defendant's business. It is clear that under the rules of the company it was only to be used as a signal to be put on the track when it was desired to stop an approaching train. We also agree that the evidence shows that it was placed in the care of the engineer, and that the fireman had no right to use it, or authority to take it from the engine, save as directed by the engineer. We cannot, however, admit that the uncontradicted evidence proves that the fireman placed the torpedo on the track without the authority or knowledge of the engineer. It is true that the fireman testifies to this effect, and that the engineer denies that he put the torpedo on the track, or...