Hartford v. N. Pac. R. Co.

• Decision Date: 08 November 1895
• Parties: HARTFORD v. NORTHERN PAC. R. CO.
• Court: Wisconsin Supreme Court

91 Wis. 374

64 N.W. 1033

HARTFORD

v.NORTHERN PAC. R. CO.

Supreme Court of Wisconsin.

Nov. 8, 1895.

Appeal from circuit court, Waukesha county; A. Scott Sloan, Judge.

Action by Elizabeth Hartford, administratrix, against the Northern Pacific Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

This action is for the recovery of damages for the alleged negligent killing of the deceased, Hugh Hartford, while he was engaged in defendant's employ in its repair shops at Waukesha, Wis. The facts upon which it is claimed defendant is liable are as follows: At the time of the occurrence the deceased was, and had been for some time prior thereto, a machinist employed in the repair shops. Charles W. Tait was the foreman of the shops, whose duty it was to oversee the men, and see that their work was done properly. George Burdette was a pit boss or subforeman in the shops, having several employés working under him, including the deceased and an apprentice or machinist's helper, August Luchtenberger. There was a broken-down engine in the shops to be repaired, and it became necessary, in doing the work of such repair, to turn the center pair of large drive wheels, on the track, in order to draw a pin that fastened the side or connecting rod. Tait directed the pit foreman, Burdette, to send a man to do this work. Such work required the said center pair of wheels to be slipped on the track and turned half way around. Tait suggested to Burdette to send Hartford and Luchtenberger, which he did. There is evidence tending to show that deceased and Tait were at the engine together before Luchtenberger arrived, and that they tried to slip the wheels on the track; Hartford, using a pinch bar, applied to the wheels, while Tait was in the cab putting on steam, but they were unsuccessful. Hartford then went to get another bar, and in the meantime Luchtenberger arrived, and he and Tait tried to slip the wheels; the latter putting steam on as before, while Luchtenberger applied the bar, but without success. Hartford returned with another bar, which he put in the wheel where Luchtenberger had been prying with his bar, and the latter, by Hartford's direction, applied his bar to another part of the wheel. While they were thus prying, in the endeavor to slip the wheel, Tait again put the steam on, and the wheel then suddenly turned, causing the side rod to rise and strike Hartford's bar, and drive the end of it against his body, near the heart, resulting in his death. At the time Tait put on the steam, as last stated, it made considerable noise, so that it was distinctly heard by Luchtenberger, who knew that Tait was in the cab, and knew, from the noise and otherwise, that he was putting on the steam; but it is claimed that Hartford was unconscious of these facts, though, as stated, the evidence tends to show that before he went for the bar he knew that Tait was in the cab, and they together had been trying to slip the wheels, by the joint use of steam and the bar. It was common to thus apply the steam for the purpose of aiding to turn the wheels on the track, as it was done at the time of the occurrence complained of.Thomas H. Gill, for appellant.

Ryan & Merton, for respondent.

MARSHALL, J. (after stating the facts).

Under the most favorable view that can be taken of this case, respondent is not entitled to recover unless the foreman of the repair shops, Mr. Tait, who, it is claimed, applied the steam, was a superintendent, within the meaning of chapter 438, Laws 1889 (Sanb. & B. Ann. St. § 1816a). As stated, in effect, by counsel for respondent, in their printed argument, the action was brought on the theory that Tait was such a superintendent; that he was negligent, and that such negligence was the proximate cause of the injury which resulted in the death of the deceased. On that theory the cause was tried, submitted to the jury, a verdict rendered in plaintiff's favor, and judgment entered, from which this appeal was taken. It follows that, if the construction given to the act by the court below, upon which counsel relies, is wrong, then the judgment is wrong, and must be reversed. The act is as follows: “Every railroad corporation doing business in this state shall be liable for damages sustained by any employe thereof within this state, without contributory negligence on his part, when such damage is caused by the negligence of any train dispatcher, telegraph operator, superintendent, yard master, conductor or engineer, or of any other employe, who has charge or control of any stationary signal, target point, block or switch.” The question here presented is not what definition the railroad company now gives to the word “superintendent,” or how Webster defines it, but in what sense did the legislature use the word in the act in question? To properly determine such question, resort must be had to the established rules for the judicial construction of statutes. It is said that: “The...