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

• Decision Date: 28 January 1908
• Citation: 134 Wis. 412,114 N.W. 785
• Court: Wisconsin Supreme Court
• Parties: HEMMINGSEN v. CHICAGO & N. W. RY. CO.

134 Wis. 412

114 N.W. 785

HEMMINGSEN

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

Supreme Court of Wisconsin.

Jan. 28, 1908.

Appeal from Circuit Court, Oconto County; Samuel D. Hastings, Judge.

Action by J. Hemmingsen, as administrator of the estate of George F. Parks, deceased, against the Chicago & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought to recover for the pecuniary injury resulting to the widow from the death of plaintiff's intestate, employed by defendant as brakeman. The negligence charged is in the construction and maintenance of one of its tracks so near a certain platform as to be “unreasonably and unnecessarily hazardous and dangerous.” The jury returned the following verdict:

“First Question: Was the platform between which and the car the deceased, George F. Parks, was crushed, so close to the side track as to render the place unnecessarily dangerous to the defendant's employés in the performance of their duties at that time? Answer: Yes.

Second Question: If you should answer the first question ‘Yes,’ then answer this: Ought a person of ordinary intelligence and prudence and experience as the defendant was, and similarly situated and engaged, to have reasonably anticipated that some injury would result to an employé from the proximity of said track to said platform, while such employé was in the performance of his duty? Answer: Yes.

Third Question: If you answer the first question ‘Yes,’ then answer this: Ought a person of ordinary intelligence and prudence, and similarly situated, experienced, and engaged as was deceased, to have observed the nearness of the platform to the track, and comprehended the danger resulting from going between the moving cars and the platform? Answer: No.

Fourth Question: Did any want of ordinary care on the part of the deceased, Mr. Parks, proximately contribute to his injury, which caused his death? Answer: No.

Fifth Question: At what amount do you assess the plaintiff's damages? Answer: $5,000.”

Defendant moved for judgment notwithstanding the verdict, that answers to questions 3 and 4 of the verdict be changed, and for a new trial, which were denied, and judgment given for plaintiff on the verdict, from which this appeal was taken.Edward M. Hyzer, for appellant.

Gill & Chase (Wigman, Martin & Martin, of counsel), for respondent.

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

1. The principal contention for reversal is that upon the undisputed evidence the deceased, George F. Parks, was guilty of contributory negligence, and therefore the court should have changed the answers to questions 3 and 4 from “No” to “Yes.” On the day of the fatal injury deceased was employed in switching cars on side tracks near the platform at the plant of the Falls Manufacturing Company at Oconto Falls, in this state. While thus engaged he was crushed between the platform and a moving car, and died from the effects of the injuries received. The platform was about 64 feet long and extended east and west along the south side of a warehouse. There were three switch tracks south of this platform numbered 3, 4, and 5, connecting with a three-throw switch located about 6 feet west of the west end of the platform and a little south of the south line of the platform extended. Track No. 3 was nearest to and about parallel with the platform, but varied in distance from the platform at different points from 11 inches to about 2 feet or more from the side of a box car on the track to the platform. The platform also varied in height, and was old, uneven in height, and irregular of outline. Near the west end it was about 3 feet 10 inches and at the east end about 4 feet 6 inches above the top of the rail, while in or near the middle it was much higher. The evidence further tends to show that said track No. 3 had been used to place cars that were taken out, and had not been used for spotting or switching much; that neither deceased nor any of the brakemen had been seen doing any work between the platform and side of a passing car on this track before the injury occurred. The train crew engaged at the time of injury consisted of the conductor, engineer, fireman, and two brakemen. There were three cars attached to the engine. One of these had been switched onto one of the tracks south of track No. 3, and the movement in thus switching left the engine and two cars attached west of the switch about half a car length. The next movement was for the purpose of placing the remaining two cars on track No. 3, which was nearest to the platform. The deceased threw the switch, crossed to the south side of the cars, gave the back-up signal, and walked eastward on the southerly side of track No. 3, while the engine and cars backed in upon the track. At about this time the other brakeman called to deceased saying: “All right, George, cut it off, and I will catch it.” Upon receiving this order deceased rushed across to the platform in front...