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

• Citation: 58 Wis. 525,17 N.W. 420
• Parties: HEINE v. CHICAGO & N. W. RY. CO.
• Decision Date: 20 November 1883
• Court: Wisconsin Supreme Court

58 Wis. 525

17 N.W. 420

HEINE

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

Supreme Court of Wisconsin.

Filed November 20, 1883.

Appeal from circuit court, Sauk county.

G. Stevens, for appellant, Frederick Heine.

W. F. Vilas, for respondent, the Chicago & Northwestern Railway Company.

TAYLOR, J.

This action was brought by the appellant to recover damages for injuries received while at work for the respondent as a common laborer. The appellant, with a large number of other men, was at work for the respondent near Cottage Grove “surfacing track;” that is, filling the dirt and gravel between the ties, and dressing up the surface. The gravel used was brought by a train of flat cars in charge of a conductor and the usual train hands. It was the duty of the men engaged in “surfacing” to get upon the cars, when the gravel train came up, and shovel off the gravel. The men engaged in “surfacing” were not otherwise connected with the train. The appellant claims he was injured in the following manner: When the gravel train came up with its load of gravel to the place where he and the others engaged in “surfacing” were at work, the conductor of the gravel train stopped the train, and ordered the appellant and the men working with him to get on the train for the purpose of being taken to the place where the gravel was to be unloaded, and then unload the same; that while he was engaged in getting on the train, and before he had time to do so, the conductor carelessly and negligently started the train without warning, and he was thrown upon the track and injured.

Upon the trial there was conflicting evidence as to how the injury occurred, and the weight of the evidence would seem to show that the appellant was injured by attempting to get on the train while it was in motion, without being ordered to do so by any one in charge thereof. There is perhaps some evidence tending to prove the appellant's version of the matter; and, as the learned circuit judge ordered a nonsuit, we must, upon this appeal, consider the case in the light of the appellant's version of the cause of his injury. Taking it for granted that the conductor of the gravel train stopped the same, and directed the appellant and the other men whose duty it was to unload the gravel to get upon the train for that purpose, and that while the appellant was obeying such order, and before he had time to do so, the conductor negligently and carelessly started the train without giving proper warning, and thereby the appellant was injured, was it error on the part of the circuit judge to order a nonsuit?

The answer to this question depends upon the other question, whether the conductor of the train and the appellant were co-employes of the respondent in the business then in hand within the meaning of the law, which relieves the respondent from liability to answer in damages for an injury to its servant or employe, while in its employment, which results solely from the carelessness or negligence of another employe. The answer to this question would not be free from difficulty if we were called upon to determine it upon the authority of the decisions of the courts of other states; but as this question has received the consideration of this court in several decided cases, the authority of which we are bound to respect, and which we think are fully supported by at least a preponderance of the authority, we feel no hesitancy in holding that the nonsuit was properly ordered in this case.

The distinction which some of the courts have made in favor of the employe, who by the nature of his employment is under the orders or directions of some other employe as to the way or manner in which he shall perform his part of the common work in hand, and holding that employes having such relations to each other are not co-employes within the meaning of the law above stated, and that the principal is liable for an injury resulting to the subject employe through the negligence of the employe having the power to direct his movements and acts, is not sustained by the weight of authority outside of this state and has not been adopted by this court.

This court held in the case of Chamberlain v. Railroad Co. 7 Wis. 425, that a brakeman could not recover for an injury caused by the negligence of the engineer on the same train. This case came before this court again in 11 Wis. 238, and it was there held that the plaintiff, acting as brakeman, could recover of the company for an injury caused by the negligence of the engineer on the same train. The present chief justice gave no opinion in that case on that point.

In Moseley v. Chamberlain, 18 Wis. 700, Chief Justice DIXON receded from his position taken in the case of Chamberlain v. Railroad Co., supra; he and the present chief justice holding that “one employe could not recover from his employer for an injury occasioned by the negligence of another employe engaged in the same business.” The person injured in this case was a baggageman, acting at the time as brakeman, and was fatally injured while setting the brake by the sudden and unexpected stopping of the train.

The late learned Justice PAINE adhered to his opinion in the case of Chamberlain v. Railroad Co., supra. In Cooper v. Railroad Co. 23 Wis. 668, this court held that a brakeman could not recover for an injury caused by the negligent removal of the rails of the track by the other servants of the company not in any way connected with the running of the train, and their failure to give proper notice to the coming train. In this case Justice PAINE conceded that the weight of authority was against his ruling in the case of Chamberlain v. Railroad Co., supra, but suggested that in the case then under consideration the action should be maintained, because the negligence which caused the injury was the negligence of a servant employed in a different department of the service, and for that reason the person injured should not be deemed a fellow-servant with those whose negligence caused the injury. The majority of the court held otherwise.

In Brabbits v. Railroad Co. 38 Wis. 289-297, Justice LYON, in delivering the opinion of the court, says: “It is now too well settled to admit of controversy that a master is not liable to his servant for injuries caused by the negligenceof a fellow-servant in the same general employment or business. It is just as well settled that under certain circumstances the whole power and authority of the master is vested in an employe or servant, in which case the negligence of such employe is the negligence of the master.” This case points out the exception to the general rule first above stated. Further along in the opinion it is said: “We think the question whether the defendant is liable for the consequences of the negligence of the foreman must be determined upon an entirely different principle. The defendant owed certain duties to the plaintiff. Among these was the duty to keep the engine used to propel the train upon which the plaintiff was employed in proper repair. If such engine became out of repair and unsafe to the plaintiff, it...