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

• Decision Date: 22 March 1898
• Citation: 74 N.W. 554,99 Wis. 109
• Court: Wisconsin Supreme Court
• Parties: HENNESEY v. CHICAGO & N. W. RY. CO.

99 Wis. 109

74 N.W. 554

HENNESEY

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

Supreme Court of Wisconsin.

March 22, 1898.

Appeal from superior court, Milwaukee county; George E. Sutherland, Judge.

Action by Gusta Hennesey, as administratrix of James Hennesey, against the Chicago & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

The plaintiff is the widow and administratrix of one James Hennesey, deceased, who was killed March 19, 1895, in the yards of the defendant in Milwaukee, and she brings this action to recover damages for his death. The ground of liability claimed is that the deceased, while performing his duties, caught his foot in an open ditch negligently maintained in the yard, and was consequently killed. The evidence showed that the defendant has three yards at Milwaukee, one near the passenger station on the north side of the river, one at or near National avenue on the south side of the river, and the third one in the south part of the city, called the “farm yard,” where empty cars are stored. Each of the yards contains a large number of switches, the farm yard having about 50, and the two other yards having about the same number each. The deceased was foreman of the switching crew, and worked in all of the yards, as his duties required, sometimes going to the farm yard several times a day, and sometimes not at all during the day. On the day of his death he went with a switch engine and switching crew to the farm yard, to obtain some grain cars for the St. Paul Railway. The tracks in the farm yard run practically north and south. They entered the farm yard from the north, with the engine headed south. Hennesey was directing the work on the ground, and actively assisting in coupling and uncoupling the cars and directing the engine. The engine pulled a long string of freight cars from a switch track towards the north, onto the main lead track, and Hennesey was directing the cutting off of certain cars from the south end of the string, and setting them on switch tracks. He had made two cuts, doing the uncoupling himself, and he then signaled the engineer to go ahead across the same switch which he had just used, for the purpose of preparing to cut off two more cars. The engine pulled north over the switch, which was a split switch, and, when it had passed the switch sufficiently, Hennesey threw the switch, and gave the signal to go south again, for the purpose of cutting off the two south cars. As the cars began to move towards the south, Hennesey walked north, and met the cars north of the switch, and stepped in between the second and third cars, and walked along between the second and third cars, but with his feet outside of the track, and apparently attempted to pull the pin between the cars as he passed over the point of the switch. No one saw him alive after this, nor witnessed the accident. At this point of the switch, the switch rod passes under the tracks connecting the two rails; and under this rod there is a ditch between two ties about eight inches in depth, below the track, and ten inches in width, the purpose of which ditch is partly to allow free and unobstructed play of the switch rod, and partly to allow water to drain away across the yard, from west to east. The facts show that something serious happened to Hennesey at this point. The pin was not pulled, although it was found to be loose in the socket. The forward wheels of the third car, for some unexplained reason, left the track to the east, and the brakeman at the head of the train, discovering some difficulty, signaled the engineer to stop, which he did within about 12 feet. The body of Hennesey was then found west of the tracks, on the ground, with his breastbone and back crushed in, as if caught between two unyielding bodies, but with no other injuries. He never spoke, and died within a few minutes. A part of the skirt of his coat was cut off on the track at the ditch, and his footprints ceased there. There was also, apparently, the track of a foot in the bottom of the ditch, just outside of the rail, and the appearance of the ground south of the ditch and outside of the rail, as if a body had been shoved along. His left shoe was partially off, the heel being out of the shoe, and a marked dent or depression on the back of the shoe just above the heel. The theory of the plaintiff was that he accidentally slipped in this drain with his left foot, and caught his foot, and was thrown down and crushed under the projecting oil box of the following car. At the close of the evidence, a motion was made by the defendant to direct a verdict for the defendant, on three grounds: (1) Because no negligence was proven on the part of the defendant; (2) because the plaintiff assumed the risk; and (3) because the evidence shows contributory negligence. The motion was denied, and a special verdict ordered and rendered as follows: “(1) Was James Hennesey injured while discharging his usual duties in the customary manner? Yes. (2) Was the switch and roadbed at the place of the accident constructed in the way such switches and roadbeds are usually constructed under like circumstances by persons of ordinary care and experience in like business? No. (3) Was the switch and roadbed defectively constructed? Yes. (4) If you answer the third question, ‘Yes,’ then was the injury to James Hennesey proximately caused by such defect? Yes. (5) If you answer the third question, ‘Yes,’ then had such defect existed long enough for the defendant, with the use of ordinary diligence, to have known and remedied such defect? Yes. (6) If you answer the third question, ‘Yes,’ then ought the defendant to have reasonably expected that such an injury as the one in question might probably occur as a result of not remedying such defect? Yes. (7) Was the defendant guilty of any want of ordinary care, which proximately caused or contributed to the injury to James Hennesey? Yes. (8) Was James Hennesey guilty of any want of ordinary care, which proximately caused or contributed to his injury? No. (9) What pecuniary loss has the widow of James Hennesey sustained by reason of his death? Five thousand dollars ($5,000).” Upon this verdict a judgment for the plaintiff was rendered, and the defendant appeals.

Marshall, J., dissenting.

Fish & Cary and R. N. McMynn, for appellant.

E. M. McVicker, for respondent.

WINSLOW, J. (after stating the facts).

The defendant claims here, as it claimed below, that no case was made by the plaintiff, because (1) the evidence showed no negligence on its part; (2) the plaintiff's intestate assumed the risk; and (3) because he was guilty of contributory negligence.

We are unable to say, as matter of law, that a verdict should have been directed upon either of these grounds. The evidence was entirely sufficient to take to the jury the question whether leaving an open ditch in a railroad yard of the width and depth of the one in question, under and at the side of the track where switchmen would naturally walk, was not an act of negligence. The evidence was ample that such ditches did not exist in the yards of other companies, or even in the other Milwaukee yards of the same company.

The question of assumption of risk is one of greater difficulty. The ditch had existed in the same condition for a long time, and the intestate was familiar with the yard. There was evidence that all or nearly all of the switch rods in the farm yard had openings or ditches under them of the same general character as the opening in question, for the purpose of giving free play to the switch rod; but there was also positive evidence by at least one witness acquainted with the yard that the openings under the other switch rods were much shallower than the one in question. And a number of witnesses who testified to the existence of similar openings at the other switches admitted that the other openings were simply intended to allow free play to the switch rod, while the opening in question constituted a part of a continuous ditch passing for a long distance transversely under several tracks for the purpose of draining the yard. The evidence also clearly showed that, in the two other yards of the company where the deceased spent the greater part of his time, there were no such ditches, but that all such drains were covered. If the accident to the plaintiff's intestate was in fact caused by his stepping into the ditch and his foot becoming wedged in between the ties, as the condition of his foot and shoe when found may perhaps indicate, it is very evident that the depth of the ditch was one important and efficient element in working the mischief. A ditch two or three inches deep would probably present no such possibility, or at least only in a comparatively slight degree. Had it been clear and undisputed that all the switches in the yard had similar deep ditches under them, it might with reason be claimed that a man who had worked for any considerable time in the yard would be held, as matter of law, to have assumed the risk. Paine v. Railway Co., 91 Wis. 340, 64 N. W. 1005. But there being evidence tending to show that the ditch in question was substantially different from the openings at the other switches, and the danger to be apprehended greater in degree as well as different in character, it cannot be said, as matter of law, that the intestate assumed the risk because he had not seen and appreciated the special danger at this one switch. Colf v. Railway Co., 87 Wis. 273, 58 N. W. 408; Paine v. Railway Co., supra; Curtis v. Railroad Co., 95 Wis. 460, 70 N. W. 665.

Nor can it be held, as matter of law, that...