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

Decision Date20 October 1891
Citation80 Wis. 299,50 N.W. 99
CourtWisconsin Supreme Court
PartiesHOLUM v. CHICAGO, M. & ST. P. RY. CO.

OPINION TEXT STARTS HERE

Appeal from circuit court, Dane county; ROBERT G. SIEBECKER, Judge.

Action by O. S. Holum, administrator of the estate of Nels B. Johnson, against the Chicago, Milwaukee & St. Paul Railway Company to recover damages occasioned by the death of deceased, who was injured in a frog which defendant neglected to guard. Verdict for defendant by direction, and judgment thereon. Plaintiff appeals. Affirmed.

STATEMENT BY THE COURT. This is an action for damages sustained by reason of the death of Nels B. Johnson while in the employ of the defendant, as brakeman on its road between Portage and La Crosse, at Tomah, between 9 and 10 o'clock on the evening of April 6, 1889. The particular negligence alleged is that the defendant recklessly and carelessly neglected and omitted to keep the frogs in the track at that place blocked and guarded as required by law, and as was its duty to do, whereby the foot of said Johnson became caught in the frog, and consequently the car violently struck him to the ground, and ran over him, and thereby crushed, bruised, and mangled him, from which he died. The answer consists of admissions and denials, and alleges that the deceased was well acquainted with and knew the condition of the tracks, switches, and road-bed in Tomah, and on the whole line, at the time, and voluntarily assumed and undertook the risk and hazard incident to his employment, and that the injury was caused by his own contributory negligence. At the close of all the testimony the counsel for the defendant requested the court to direct a verdict in its favor, whereupon the court stated: “I think it must be taken as an established fact in this case that Nels Johnson had full knowledge of the dangers and risks incident to his employment by reason of the use of frogs in that railroad. That being the case, and the train being in his charge, and it appearing, by the undisputed testimony, that he deliberately put himself in a dangerous place that he could have avoided by ordinary care, I feel compelled to grant the motion to direct a verdict.” He then said to the jury: “Under the motion I have decided the case, but, to make the record complete, I instruct you to find a verdict for the defendant. Of course, the court assumes that responsibility. It is merely a matter of form to make the record complete.” Thereupon the jury returned a verdict to the effect that they found for the defendant by direction of the court. From the judgment entered upon that verdict the plaintiff brings this appeal.John Ollis and I. C. Sloan, for appellant.

John T. Fish and Gregory & Gregory, ( Burton Hanson, of counsel,) for respondent.

CASSODAY, J.

As indicated in the opinion of the trial judge, contained in the foregoing statement, it appears from the undisputed evidence that the engine and cars were, at the time of the accident, under the control and management of the deceased as such brakeman. He gave the signals for the moving of them with his lantern. It also appears from the undisputed evidence that he gave the wrong signal, and failed to give the right signals, which would have made it safe for him to couple the cars; that about the same time his foot unfortunately got caught in the frog; that the result was that the car came upon him, and crushed him. Counsel for the plaintiff contends that it was negligence per se in the defendant to thus leave the frog unblocked and unguarded; and that such negligence made the defendant absolutely liable, regardless of the contributory negligence on the part of the deceased. Counsel cites no decision or authority for the existence of such a rule at common law. We are not aware that such a question has ever been presented to this court, notwithstanding the accidents which have happened by reason of the foot being thus caught in a frog. A few years ago the learned counsel for the plaintiff argued such a case in this court, where such a principle of law would have made his success certain, but he gave us no intimation that any such rule of law existed. Townley v. Railway Co....

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32 cases
  • St. Louis & S. F. R. Co. v. Long
    • United States
    • Oklahoma Supreme Court
    • December 23, 1913
    ...42 Neb. 793, 60 N.W. 1044; O'Neill v. Chicago, R. I. & P. Co. (1901) 62 Neb. 358, 86 N.W. 1098, 86 N.W. 1098; Holum v. Chicago, M. & St. P. R. Co. (1891) 80 Wis. 299, 50 N.W. 99. A case which also tends to support the same view is Union P. R. Co. v. James (1896) 163 U.S. 485, 16 S. Ct. 1109......
  • Hall v. West & Slade Mill Co.
    • United States
    • Washington Supreme Court
    • August 2, 1905
    ... ... 62 N.W. 527. Similar statutes have been construced the same ... way. Curry v. C. & N.W. R. Co., 43 Wis. 665, 683; ... Holum v. C., M. & St. P. R. Co., 80 Wis. 299, 50 ... N.W. 99; Dugan v. C., St. P., M. & O. R. Co., 85 ... Wis. 614, 55 N.W. 894; Schneider ... ...
  • St. Louis & S. F. R. Co. v. Long
    • United States
    • Oklahoma Supreme Court
    • January 13, 1914
    ... ... R ... Co. v. Baxter (1894) 42 Neb. 793, 60 N.W. 1044; ... O'Neill v. Chicago, R.I. & P. Co. (1901) 62 Neb ... 358, 86 N.W. 1098; Holum v. Chicago, M. & St. P. R ... Co. (1891) 80 Wis. 299, 50 N.W. 99. A case which also ... tends to support the same view is Union P. R. Co. v ... ...
  • Denver & R. G. R. Co. v. Norgate
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 20, 1905
    ... ... 523, 530, 62 N.W. 527. Similar statutes ... have been construed the same way. Curry v. C. & N.W.R ... Co., 43 Wis. 665, 683; Holum v. C., M. & St. P.R ... Co., 80 Wis. 299, 50 N.W. 99; Dugan v. C., St. P., ... M. & O.R. Co. 85 Wis. 614, 55 N.W. 894; ... [141 F. 257] ... ...
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