Hackett v. Wis. Cent. Ry. Co.

• Decision Date: 19 February 1910
• Citation: 141 Wis. 464,124 N.W. 1018
• Parties: HACKETT v. WISCONSIN CENT. RY. CO.
• Court: Wisconsin Supreme Court

141 Wis. 464

124 N.W. 1018

HACKETT

v.WISCONSIN CENT. RY. CO.

Supreme Court of Wisconsin.

Feb. 1, 1910.

Dissenting Opinion Feb. 19, 1910.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by Richard H. Hackett, Administrator, against the Wisconsin Central Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, unless plaintiff agree to remission of damages.

Plaintiff's decedent, a fireman, was on a work engine of the defendant September 10, 1906, with the engineer and a passenger. The engine and tender were detached from the work train. The work crew and conductor on the tender, and the engineer proceeded to back up westward from Weyauwega to Waupaca. This was done at an increase of speed, reaching, as estimated, 60 or 70 miles an hour, until the tender mounted the track, ran to one side, and tipped the engine over, killing both the fireman and engineer. The complaint alleged negligence in that the track was defective, and the engine was carelessly run by the engineer and conductor in charge thereof. The jury found that: (1) The track of the defendant at the place of injury was in a defective and unsafe condition; (2) such defect could have been discovered by defendant by reasonably proper care, test, or inspection; (3) engineer operated the locomotive in a careless and negligent manner; (4) such facts were the proximate cause of the injury and death; (5) deceased was engaged in the line of his duty as employé; (6) the injury arose from a risk or hazard peculiar to the operation of railroads; (7) no want of ordinary care or prudence on the part of the deceased contributed to the injury; (8) deceased contributed to his parents $250 a year; and (9) damages $4,500. After the usual motions for direction and correction of verdict, judgment non obstante, and new trial, judgment was entered for the plaintiff for $4,500 and costs, from which the defendant appeals.

Marshall, J., dissenting.Walter D. Corrigan, W. A. Hayes, and Clifton Williams, for appellant.

Stewart & McDonald, for respondent.

DODGE, J. (after stating the facts as above).

1. Appellant's first contention is that verdict and judgment for the defendant should have been ordered upon undisputed evidence. This general contention is supported on various asserted grounds, among which is the doctrine of assumption of the risk. But under the existing statutes in this state a railroad employé, in the line of his duty, does not assume the risk of negligence in a coemployé, except, perhaps, in the case where he knowingly, voluntarily, and unnecessarily submits himself thereto. Again, it is asserted that the deceased was not in the line of his duty as an employé. His duty required him to ride in the engine from Weywauwega to Waupaca, and he was doing just that. He did not cease to be acting in the line of his duty, within the meaning of our statutes, even if he performed some negligent act in the course of his conduct. The evidence, instead of conclusively establishing that he was not in the line of his duty, we think was conclusive the other way. Further, appellant contends that deceased co-operated and confederated with the engineer in the performance of the latter's negligent act, which was the running of the train at an excessive and negligent speed. We have no doubt that if there had been affirmative agreement, or even consent by the deceased, in advance to such running, recovery would be prevented, both under the rule “Volenti non fit injuria,” and on the ground of contributory negligence. We, however, find no evidence justifying more than a conjecture of any such fact. The sum total of the evidence is that after engineer and fireman were in their places the engineer increased the speed of the engine to an excessive and negligent degree; that deceased did nothing except to call the engineer's attention to the speed. From these facts there can be no legitimate inference that he either agreed with, or encouraged, the engineer to such negligence, or that he consented thereto at a time when a protest could have been rendered effective by withdrawing himself from the danger.

A further contention that deceased is conclusively convicted of contributory negligence is met by much the same considerations. If he had no knowledge before taking his seat in the cab that an excessive and negligent rate of speed was intended, he had no opportunity, at any time after discovering such intent or conduct, to take any effective precautions. He could not leave the engine, nor could he control the engineer's conduct, unless, perhaps, he were of preponderant physical power, a fact which was not established. Besides, he was subject to the command and authority of the engineer, who had larger experience, and was vested by the rules of the company with full control over his conduct as an employé. If it was his duty, in the exercise of due care or under the rules, to caution the engineer of a danger so obviously within the latter's knowledge, the evidence at least tends to establish that he did so. The proof is undisputed that both he and the other occupant of the cab in his presence called the engineer's attention to the very high rate of speed; had loud talk “how he was hitting her,” or “batting her” in the language of the witness. The assertion by counsel that such remarks were made jestingly or by way of encouragement is without support from the testimony; indeed is in defiance of express contradiction. The remaining basis for this general contention of appellant is that the deceased's conduct was somehow in breach of divers and sundry rules of the company. We are cited to a half dozen rules addressed generally to all employés of the railroad company, calling attention to the hazardous nature of their employment and their general duty to be careful both for themselves and for others, and duty of one who is employed over or with another to caution such other of risks which he is about to encounter.As counsel construes these rules, the business of railroading could hardly be carried on with a celerity equal to the ancient stage coach. If they have been promulgated by the company in the literal and extreme sense which they assume in court, the conclusion would be irresistible that they have been promulgated for the purpose of being broken, instead of obeyed, in many respects. It is very certain that an employé who obeyed all of them to the letter would not make his services of much value in the business of railroading as it is customarily conducted within common knowledge.

However, these glittering generalities in regard to general duty of caution and avoiding of danger in a business where exposure to danger is continuously required of employés must be deemed controlled, so far as they conflict, by the special rules addressed to the firemen, which provide primarily and specifically that “while on duty they are subject to the directions of their own engineers. * * * Each engineer is held responsible for the engine under his charge.” “Engineers must not allow others to handle their engines, except their own firemen, the engineer remaining upon the engine and being held responsible.” Firemen shall, “when not engaged with other duties, assist in keeping a constant lookout, and will instantly give their engineer notice of any obstruction which they may perceive, or of any signals observed from other trains, or in case they shall have reason to believe their trains have parted, they will immediately notify their engineers of the same.” We can find nothing in these rules to justify the view that it was the duty of the fireman to attempt to control, or interfere with, the engineer's operation of his engine; at most, further than to call his attention to that operation, which was done by the deceased. It is difficult to conceive any other act reasonably possible to the fireman which he could fairly believe would be effective. Having called attention to the excessive speed, could he suppose the engineer would be affected by a lecture upon the perils of such speed from himself, an inferior in responsibility, in knowledge, and in experience? Counsel assures us that such perils are known of all men; then surely by an experienced engineer, once he is informed of the fact of the high speed. The only other course open to the fireman was to take in his own hands the running of the engine in defiance of express rules, and possible only in case he could physically overpower his superior. Such steps are manifestly so unreasonable and absurd that they cannot be declared as matter of law essential to the conduct of an ordinarily prudent person under the circumstances disclosed. We cannot agree with the counsel that the evidence is at all conclusive of any failure on the part of the deceased to exercise ordinary care.

2. Error is assigned upon the admission of...