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

• Decision Date: 31 May 1913
• Citation: 142 N.W. 505,153 Wis. 637
• Court: Wisconsin Supreme Court
• Parties: GRAY v. CHICAGO & N. W. RY. CO.

153 Wis. 637

142 N.W. 505

GRAY

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

Supreme Court of Wisconsin.

May 31, 1913.

Appeal from Municipal Court of Outagamie County; Thomas H. Ryan, Judge.

Action by William H. Gray against the Chicago & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Personal injuries. Plaintiff, a man 51 years of age, was for years an employé of the defendant, and in January, 1911, was an “engine dispatcher” or “hostler” in the defendant's yards at Antigo, Wis. His duties were to take charge of every engine coming into the yards at the close of its run, empty the fire box by dumping the coal and cinders into the cinder pit, run it to the coalhouse to be replenished with coal, to the water tank to be replenished with water, thence to the wood bin to be supplied with kindling to start a fire, and thence to the roundhouse to wait for its next trip. He had an assistant named Rock, and a helper named Kraioski; the latter was called the pitman, and it was his duty to clean out the pan of the engine, wet down the coals and cinders, and shovel the cinders out of the pit. The tracks in the yards run practically north and south; the roundhouse being at the north end and the engines coming in at the south end. As the engine comes into the yard it first reaches the cinder pit, a long rectangular pit, several feet deep, which is about 80 feet in length, somewhat wider than the track, and immediately under the same; 6 feet 9 inches north of this pit, and on the west side of the track, is a coal shed, which parallels the track for about 250 feet northward, and is 4 feet 3 inches distant from the west rail thereof, leaving a clearance space of about 18 inches; on the east side of the track, about 12 feet distant from the east rail, and about 60 feet north of the cinder pit, is a small shelter shanty, 9 by 15 feet in size, in which the plaintiff and his helpers stayed when not required by their duties to be actively at work; the sandhouse, water tank, and wood bin were still further north on the east side of the track, and the roundhouse was 200 feet further north than the wood bin. About 30 engines were dispatched during the 24 hours, of which the plaintiff and his assistant dispatched about half; their working hours were from 6 o'clock a. m. until 6 o'clock p. m. The accident in question happened between 10 and 11 o'clock in the forenoon of January 19, 1911. The plaintiff testified that on that morning he and his helper had dispatched four engines prior to 8:20 o'clock, at which time he went to the depot to get his pay check; he then went to a grocery store and also to a saloon near by, and returned to the roundhouse after an absence of about 50 minutes; he remained at or in the vicinity of the roundhouse about three-quarters of an hour, and then walked southward on the east side of the track past the sandhouse and the shanty to a point about 23 feet south of the shanty, where he crossed to the west side of the track and walked along south along the east side of the coal shed, between it and the west rail of the track to the southeast corner of the coal shed, and continued south to a point 3 or 4 feet south of the north line of the cinder pit, where he stopped. He testifies that he came to this point because when he left the roundhouse he saw so much steam and smoke, crossing from the cinder pit, that he concluded that he ought to ascertain whether the cinder pit man, Kraioski, was performing his duty in putting out the fire in the cinder pit. He further testifies that when he reached the last point above stated he saw Kraioskistanding at the west edge of the cinder pit with the hose in his hands, throwing water on the hot cinders in the pit, and that when he saw this he started back to the shanty along a beaten path between the coal shed and the west rail; that smoke and steam were coming from the cinder pit in volumes and were blown northward so as to obscure the vision; that as he reached a point about opposite the shanty, as he thought, he turned eastward, stopped and listened a few seconds, but heard nothing, as he thought, except the sizzling of the water on the cinders and hot coals in the cinder pit, and then started to step over the west rail of the track, and was struck by engine No. 1066 and badly injured. He claimed that the engine was drifting or approaching noiselessly without working steam and without ringing the bell. The fact that he was struck by the engine is admitted. The negligence claimed was: (1) The failure to stop the engine south of the cinder pit, in violation of a regulation or order claimed to exist to that effect; (2) the failure to ring the engine bell; and (3) the running of the engine at a negligent rate of speed under the circumstances.

The jury returned the following special verdict:

“(1) Was the plaintiff, on the 19th day of January, 1911, struck by one of defendant's engines and injured? Answer: Yes (by the Court).

(2) Did the defendant, prior to the day of the plaintiff's injury, cause an order to be issued providing in substance that engines delivered on coal shed track to be dispatched should stop south of the cinder pit? Answer: Yes.

(3) If you answer question numbered 2 ‘Yes,’ was such order abrogated prior to the day of the plaintiff's injury? Answer: No.

(4) If you answer question numbered 2 ‘Yes,’ and question numbered 3 ‘No,’ then was Engineer Kane guilty of negligence in running his engine north of the cinder pit in violation of such order at the time plaintiff was injured? Answer: Yes.

(5) If you answer question numbered 4 ‘Yes,’ then was such negligence of Engineer Kane a proximate cause of plaintiff's injury? Answer: Yes.

(6) Was the engine bell of the engine that struck plaintiff ringing at and immediately prior to the time of plaintiff's injury? Answer: No.

(7) If you answer question numbered 6 ‘No,’ then was Engineer Kane guilty of negligence in failing to cause the engine bell to be rung immediately prior to the time of plaintiff's injury? Answer: Yes.

(8) If you answer question numbered 7 ‘Yes,’ then was such negligence a proximate cause of plaintiff's injury? Answer: Yes.

(9) Under the circumstances existing, was Engineer Kane guilty of negligence in running the said engine north of said cinder pit to the place where it struck plaintiff at the rate of speed at which he was running? Answer: Yes.

(10) If you should answer question numbered 9 ‘Yes,’ then answer this: Was such negligence a proximate cause of plaintiff's injury? Answer: Yes.

(11) Was the plaintiff guilty of any negligence which proximately contributed to his injury? Answer: No.

(12) If you should answer the eleventh question ‘Yes,’ then answer this: Was the said negligence of Kane greater than that of the plaintiff? Answer: (No answer.)

(13) If you should answer the twelfth question ‘Yes,’ then did such negligence contribute in a greater degree to the plaintiff's injury than did that of the plaintiff? Answer: (No answer.)

(14) What sum will justly compensate the plaintiff for the injuries sustained by him? Answer: $7,815.00 (seven thousand eight hundred and fifteen dollars).”

The usual motions were made by the defendant: For judgment notwithstanding the verdict; for correction of the verdict and judgment thereon as corrected; and, in event of the denial of these motions, for a new trial. All of the motions being overruled, judgment was rendered for the plaintiff on the verdict, and the defendant appeals.

Edward M. Smart and C. H. Gorman, both of Milwaukee, for appellant.

Stephen J. McMahon, of Milwaukee (P. H. Martin, of Green Bay, of counsel), for respondent.

WINSLOW, C. J. (after stating the facts as above).

The appellant makes five contentions, viz.: (1) That the plaintiff was guilty of contributory negligence as matter of law; (2) that the engineer of the engine was not acting within the scope of his employment when the accident happened; (3) that the court erred in refusing to receive evidence tending to show that plaintiff was employed in interstate commerce at the time of his injury; (4) that the court erred in admitting in evidence proof as to pulmonary tuberculosis, and in failing to instruct the jury that there was no evidence that the accident caused his tuberculous condition; and (5) that the damages are excessive. These contentions will be discussed in their order.

[1] I. The first contention is based principally upon the plaintiff's own admissions, to the effect that he did not look to the south to see whether an engine was coming before he started to walk northward, that he knew it was dangerous to walk northward from the pit, either on the track or close to the track, because it was a common occurrence for an engine to move along over this space without giving the proper signals, and that, notwithstanding this fact and the fact that he could not see to the southward, ...