Gumz v. C., M. & St. P. Ry. Co.

• Citation: 52 Wis. 672,10 N.W. 11
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 27 September 1881
• Parties: GUMZ, ADM'R, v. C., M. & ST. P. RY. CO.

52 Wis. 672

10 N.W. 11

GUMZ, ADM'R,

v.C., M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from circuit court, Juneau county.

This is an action under the statute to recover damages for the alleged negligent killing of the intestate. About 11 o'clock in the forenoon of April 24, 1879, the section foreman of that portion of the defendant's road between Elroy and Camp Douglas, and six men, including the intestate, all in the employ of the defendant, having just completed some repairs just south or east of trestle No. 3, about three miles north of Elroy, proceeded upon their hand car across that trestle, towards Camp Douglas, to make repairs further up the line. When about 300 feet north of the trestle they discovered a “wild” or “special” freight train, about 20 rods distant, coming towards them from the opposite direction around a curve and through a cut, so that at first they could only see the top of the smoke-stack. The section foreman immediately applied the brake, stopped the hand car, and he and all his men got off, and he immediately commanded his men to shove or push the hand car back, or, as some of the witnesses state in portions of their testimony, run the hand car back, or, as the section foreman in due place states, “push the car back, and save her if you can, if you can't, save yourselves,” and thereupon the intestate and his nephew, Charles Gumz, jumped upon the hand car, while the section foreman and four of the men gave it a push down the track, when the foreman immediately ran, upon the engineer's side of the track, some 60 to 90 feet towards the coming train, swinging his hat in his hand. It appears that the train was running, at the time it was discovered, from 10 to 12 miles an hour, and that when it was about 300 feet from the hand car the fireman called the attention of the engineer of the train to the hand car, and he immediately looked and saw the foreman coming with his hat in his hand, and so called for brakes and pulled the engine open, reversed it, and ran her on sand, and then saw the foreman about 90 feet ahead of the engine, and the hand car about 90 feet beyond him, and the men pushing it. When the section foreman left the hand car the intestate and his nephew, Charles Gumz, were on the hand car pumping it back, while two of the men, Torrelson and O'Neill, were pushing the hand car on one side, and two of the men, William Gumz and Munger, were pushing the hand car upon the other side. Torrelson and O'Neil first left the hand car and went off one side of the track. Munger and William Gumz continued on the side of the hand car until they got about three rails, or 90 feet, from the trestle, when they let go and told the persons on the hand car to jump off. The nephew of the intestate, young Charles Gumz, remained on the hand car, with his back towards the train, pumping, until about the length of one or two rails from the trestle, when he jumped off, and at the same time told the intestate to jump off. The trestle was about 65 feet long. About the time the hand car reached the trestle the intestate let go the handles, but kept his hands going up and down, and when from 3 to 10 feet on the trestle, and when the engine was still about 10 feet from the hand car, he turned partly around and jumped or fell sideways into the trestle, between the rails of the track, and the hand car passed over him, and also the engine, until the drivers were upon him; the front of the engine, when it stopped, being about the middle of the trestle, and the end of the hand car on the front of the pilot.

The intestate was at the time 54 years of age, and left a wife and children. The fill or grade from the place where the hand car was started back varied in height from two to ten feet. At the place where the hand car started back the track was about two feet above the adjoining grade, and at the place where young Charles jumped off it was three or four feet down the bank to the bottom, and just before reaching the trestle-work the grade was six or seven feet down to the level. There was some evidence tending to show that when they first saw the train some of the men suggested to the section foreman that they had better put the hand car off the track, which he declined to do. At the close of the testimony on the part of the plaintiff the defendant moved for a nonsuit, on the ground that the plaintiff had not established a cause of action by proof, and that the proofs showed that the intestate was guilty of contributory negligence, which motion the court refused to grant. At the close of the testimony the same motion was renewed by the defendant and granted by the court, and from the judgment entered thereon this appeal is brought.J. W. Lusk, for appellant.

J. C. Spooner and W. F. Vilas for respondent.

CASSODAY, J.

By section 1816, Rev. St., every railroad corporation is made liable for all damages sustained by any agent or servant thereof by reason of the negligence of any other agent or servant thereof, without contributory negligence on his part, when sustained within this state. In case the injury causes death, such right of action is preserved by sections 4255-6, Rev. St.,...