Herschman v. Chi., M. & St. P. Ry. Co.

• Decision Date: 07 February 1922
• Citation: 176 Wis. 209,186 N.W. 613
• Court: Wisconsin Supreme Court
• Parties: HERSCHMAN v. CHICAGO, M. & ST. P. RY. CO.

176 Wis. 209

186 N.W. 613

HERSCHMAN

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Feb. 7, 1922.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Action by A. J. Herschman, as administrator of the estate of Vasile Surdican, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Action for personal injury. This is an appeal from the judgment of the circuit court for Milwaukee county, Hon. Walter Schinz, judge, in an action brought by the plaintiff against the defendant to recover damages for the death of Vasile Surdican, on the 4th day of April, 1915, a short distance south of Corliss station, in Racine county.

The deceased, an employé of the defendant, together with one Russo, left Milwaukee on the 3d of April, 1915, to attend Easter services in a church of their denomination at Indiana Harbor, and on the evening of the 4th, upon arriving at the Union Passenger Station at Chicago, on their return trip toward Milwaukee, boarded the Pioneer Limited train of the defendant company, which train was known as No. 1, leaving said station at 6:45 p. m. At the time Surdican had an employé's pass, which specified that it was not good on certain lines, trains, or on parlor cars, but train No. 1 was not excepted. It was claimed by the conductor of train No. 1, that shortly before the happening of the accident an official bulletin was posted by the company prohibiting the carrying of passengers on train No. 1, riding on employé's passes.

Shortly after the train left the station at Chicago, Conductor Hare, while collecting fares, notified Surdican that his pass was not good on that train, and that he would be obliged to leave the train at the next stop. Up to this point there is little dispute in the testimony of the witnesses. Defendant claims that the first stop of the train was at Western avenue, an important junction of railroads, and that upon arriving at such station the brakeman, pursuant to a request of the conductor, ordered Surdican and Russo to leave the train, and that both, in obedience to such order, did leave, and that the train thereupon proceeded on its course northward toward Milwaukee.

The conductor testified that the first stop of the train was at Western avenue, which testimony was also corroborated by the fireman, Wallace, two porters, namely, Hunter and Locke, the brakeman, Streeter, and the engineer, Klumb. Brakeman Streeter testified that both Surdican and Russo alighted at the depot platform at Western avenue. On the other hand, Russo testified that the train did not stop at Western avenue, but that it stopped after the train had left the Chicago station about 15 minutes, at a point which he described as looking like a wilderness.

The brakeman, Streeter, testified that, after the train left Western avenue and had arrived at a station called Healey, he observed Surdican standing on the handrails or stirrups of two sleepers attached to each other, which handrails or stirrups were located a short distance below the platforms of the two cars. Observing that Surdican was in a dangerous position, Streeter claims he cautioned him not to get off, and motioned to him to remain where he was, and that thereupon he pulled the whistle signal for the engineer to stop, and that the train stopped at Mayfair, a closed station, and that he then directed Surdican to board the train, and that he left him on the rear seat of the coach. None of the defendant's witnesses testified that they saw Russo again after leaving the train at Western avenue station. In addition to Brakeman Streeter, the conductor, the engineer, the fireman, and the two porters testified that the second stop of the train was at Mayfair. Such testimony of the employés of the company is opposed by that of Russo alone, who testified that the only time he or Surdican were removed from the train was when the train stopped in some lonely, unsettled portion in the country along the right of way. Streeter further testified that when the train arrived at Corliss he again ordered Surdican off of the train, and that Surdican complied with such order and left the train; that at Corliss he passed along the east side of the train, for the purpose of ascertaining whether or not there were any hot boxes, and that in doing so he would have discovered any one riding on the east side of the train, standing on the stirrups between the two cars, next to the vestibule diaphragm, and that he did not see Russo standing next to the vestibule diaphragm between the two sleepers, in accordance with Russo's contention as hereafter detailed.

Russo testified that, after he and Surdican had been put off, in an uninhabited and dark spot along the right of way, Surdican, when the train started, crawled onto the rear steps of a vestibuled sleeper, under the trapdoor in the vestibule, and remained in that position until the time of the happening of the injury which resulted in his death. He also claimed that, while Surdican occupied this position on the steps, he took a position upon the stirrups or handrails next to the vestibule diaphragm, resting one foot upon the stirrup attached to the platform of the car on which Surdican was riding, and the other foot upon the stirrup attached to the platform of the next car to the rear, and that the two stirrups were between 30 and 24 inches apart.

After the train had left Corliss, the conductor claimed that, in passing from one car to another, he saw a hat appearing above the window in the vestibule door, and that he thereupon proceeded to open up the trapdoor, but that he saw no one, but heard a sound as though some object had fallen onto the gravel next to the train; that he then closed the trap, and upon arriving at Milwaukee telegraphed to the section foreman to patrol the track, and that Surdican was found, with his skull crushed, and dead, lying alongside of the track.

Russo testified that, after the train had passed Corliss a short distance, the conductor, in passing from car to car, saw him through the vestibule window, and that he thereupon opened the trapdoor over the steps on which Surdican was riding; that Surdican immediately rose to his...