Hendrickson v. Wis. Cent. Ry. Co.

• Citation: 143 Wis. 179,126 N.W. 686
• Parties: HENDRICKSON v. WISCONSIN CENT. RY. CO.
• Decision Date: 24 May 1910
• Court: Wisconsin Supreme Court

143 Wis. 179

126 N.W. 686

HENDRICKSON

v.WISCONSIN CENT. RY. CO.

Supreme Court of Wisconsin.

May 24, 1910.

On rehearing. Affirmed.

For former report, see 122 N. W. 758.Walter D. Corrigan (Glicksman, Gold & Corrigan, of counsel), for appellant.

Among references cited on the part of the appellant were: Atlanta, etc., Ry. Co. v. West, 121 Ga. 641, 49 S. E. 711-712, 67 L. R. A. 701, 104 Am. St. Rep. 179;Railway Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333-335, 54 Am. Rep. 803; Wright v. London, etc., 10 B. Div. 252; Eason v. Railway Co., 65 Tex. 577, 57 Am. Rep. 606;Welch v. Maine, etc., 86 Me. 552, 30 Atl. 116, 117, 25 L. R. A. 658;Louisville, etc., v. Ward, 98 Tenn. 123, 38 S. W. 727, 60 Am. St. Rep. 848;Cincinnati, etc., Ry. Co. v. Finnell's Adm'r, 108 Ky. 135, 55 S. W. 902, 57 L. R. A. 266-267;Longa v. Stanley, etc., et al., 69 N. J. Law, 31, 54 Atl. 251;Langan v. Tyler, 114 Fed. 716, 51 C. C. A. 503; Wright v. Railway Co., L. R. 1 Q. B. 252; Holmes v. Railway Co., L. R. 4 Exch. 254.

John C. Hart and B. R. Goggins, for respondent.

Among references cited on the part of the respondent were: Sloan v. Railway Co., 62 Iowa, 728, 16 N. W. 331;Fox v. Railway Co., 86 Iowa, 368, 53 N. W. 259, 17 L. R. A. 289;Georgia, etc., Ry. Co. v. Propst, 83 Ala. 518, 3 South. 764; O'Donnell, Adm'r of Welch, v. Maine, etc., Ry. Co., 86 Me. 552, 30 Atl. 116, 25 L. R. A. 658;McIntire v. Bolton, 43 Ohio St. 224, 1 N. E. 333;Cleveland, etc., R. Co. v. Marsh, 63 Ohio St. 236, 58 N. E. 821, 52 L. R. A. 142;Kelly v. Tyra, 103 Minn. 176, 114 N. W. 750, 115 N. W. 636, 17 L. R. A. (N. S.) 334;Meyer v. Kenyon-Rosing Mach. Co., 95 Minn. 329, 104 N. W. 132;Eckert v. Great N. Ry. Co., 104 Minn. 435, 116 N. W. 1024;McConnell v. Penn. R. Co., 223 Pa. 442, 72 Atl. 849;Eason v. S. E. & C. Ry. Co., 65 Tex. 577, 57 Am. Rep. 606; Railroad Co. v. Ward, 98 Tenn. 123, 38 S. W. 727, 60 Am. St. Rep. 848;Weatherford, etc., Ry. Co. v. Duncan, 88 Tex. 611, 32 S. W. 878;Texas, etc., R. Co. v. McDonald (Tex. Civ. App.) 85 S. W. 493;Pickwick v. McCauliff, 193 Mass. 70, 78 N. E. 730;Hartford v. N. Y., etc., R. Co., 184 Mass. 365, 68 N. E. 835, 836;Maguire v. Fitchburg, 146 Mass. 379, 15 N. E. 904, 908;Rink v. Lowry, 38 Ind. App. 132, 77 N. E. 967, 969-970;Hudgens v. St. Louis, etc., Co., 139 Mo. App. 44, 119 S. W. 522;Dooley v. Mo., etc., R. Co. (Tex. Civ. App.) 110 S. W. 135;Mo., etc., R. Co. v. Thomas (Tex. Civ. App.) 107 S. W. 868;Cincinnati, etc., R. Co. v. Rodes, 31 Ky. Law Rep. 430, 102 S. W. 321; C., etc., R. Co. v. Pettit, 111 Ill. App. 172; B. & O. R. Co. v. Charvat, 94 Md. 569, 51 Atl. 413;Toledo, etc., R. Co. v. Miller (Ind. App.) 88 N. E. 968;Baltimore, etc., R. Co. v. Trennepohl (Ind. App.) 87 N. E. 1059;Louisville, etc., Co. v. Crow (Ky.) 118 S. W. 365;Louisville, etc., Co. v. Hurst (Ky.) 116 S. W. 291;Smalley v. Rio Grande, etc., Co., 34 Utah, 423, 98 Pac. 311;Shall v. Detroit Ry. Co., 152 Mich. 463, 116 N. W. 432;Tinkle v. St. Louis, etc., R. Co., 212 Mo. 445, 110 S. W. 1086;Louisville, etc., R. Co. v. Farris, 30 Ky. Law Rep. 1193, 100 S. W. 870;Louisville, etc., R. Co. v. Smith, 27 Ky. Law Rep. 257, 84 S. W. 755;Cent., etc., R. Co. v. Duffey, 116 Ga. 346, 42 S. E. 510;Watson v. Railway Co., 66 Iowa, 164, 23 N. W. 380;Lowenstein v. Mo. Pac. Ry. Co., 134 Mo. App. 24, 119 S. W. 430;Eaton v. N. Y. Cent., etc., Co., 195 N. Y. 267, 88 N. E. 378;Barry v. Hannibal, etc., R. Co., 98 Mo. 62, 11 S. W. 308, 14 Am. St. Rep. 610;Chicago, etc., R. Co. v. Pritchard, 168 Ind. 398, 79 N. E. 508, 81 N. E. 78, 9 L. R. A. (N. S.) 857, 865;Klugherz v. Railway Co., 90 Minn. 17, 95 N. W. 586, 101 Am. St. Rep. 384;Rowley v. Railroad Co., 135 Wis. 208, 218, 219, 115 N. W. 865;Ill. Cent. R. Co. v. Hopkins, 200 Ill. 122, 65 N. E. 656;Elgin, etc., Ry. Co. v. Thomas, 215 Ill. 158, 74 N. E. 109;Hudson v. Atlantic, etc., R. Co., 142 N. C. 198, 55 S. E. 103;Bain v. Northern Pac. R. Co., 120 Wis. 412, 98 N. W. 241;Promer v. M. L., etc., R. Co., 90 Wis. 215, 63 N. W. 90, 48 Am. St. Rep. 905;Ft. Worth, etc., Ry. Co. v. Eddleman (Tex. Civ. App.) 114 S. W. 425;Iltis v. C., M., etc., Co., 40 Minn. 273, 41 N. W. 1040.

SIEBECKER, J.

The propositions urged by the appellant on this rehearing are that by the decision of this court its liability to plaintiff is placed upon the relation existing between it and the plaintiff as an employé of the granite company, while he was engaged in a service which furthered the common interest of the defendant and his employer; that the issues as to this liability were not litigated or determined at the trial before the lower court; and, if judgment can be awarded on the existing state of the record, it should be in appellant's favor.

There is no controversy but that the rule of liability which was applied to the case in the decision of this court is well established by the adjudications. The contention is that the question of defendant's liability under this rule of law was not litigated at the trial, and that, upon the facts found by the jury and the undisputed evidence in the record, no case was established which entitled plaintiff to recover as this court decided. These subjects have been ably argued by counsel for the respective parties, and their collection of the adjudications in elucidation of them will be preserved in the published report of the case for future aid and reference.

The decision of the case rested on the ground that plaintiff at the time of injury was performing a service within the scope of his employment and duties, and that it furthered the common interest of his master and the railroad company. It is earnestly argued that this conclusion is erroneous, because there is no finding by the jury that plaintiff was performing an act which furthered the common interest of the defendant and the granite company, and that the undisputed evidence will not permit of such an inference. It is claimed that the evidence tends to show that plaintiff's duties in no way required him to be near the cars which were being switched, or to assist in spotting and anchoring them on the granite company's switch track. The facts relied on for this contention were brought to our attention at the former argument, and re-examination of them convinces us that our conclusions respecting plaintiff's duty to attend the reception of empty cars and see that they were properly placed and anchored on the switch track preparatory to loading by the granite company's employés are correct, and that plaintiff was rightfully at and about the place and track when this switching was being done. It is manifest that the cars were to be so anchored and placed at the time they were switched onto the side track as to facilitate the business of the granite company, and that the plaintiff was delegated to see that this purpose and object was accomplished. In the course of the performance of this duty, he would go near the track so as to be on the ground at the time of switching, and would participate in the operation of anchoring the cars by directing and placing the cars on the track where they could be most conveniently and expeditiously prepared and handled for loading. On the occasion in question, it appears that he attempted to block the rear car at the proper place of anchorage, when he discovered that it had started to run toward the tunnel. These facts, and the accompanying circumstances of the conduct of this business by the defendant and the granite company, make it clear that plaintiff was performing duties in the line and scope of his employment as a servant of the granite company, and that he and the railroad company's employés were mutually engaged in anchoring the empty cars on the side track. In view of ...