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

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: CASSODAY
• Citation: 80 Wis. 299,50 N.W. 99
• Parties: HOLUM v. CHICAGO, M. & ST. P. RY. CO.
• Decision Date: 20 October 1891

80 Wis. 299
50 N.W. 99

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

Supreme Court of Wisconsin.

Oct. 20, 1891.

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.

[50 N.W. 99]

John Ollis and I. C. Sloan, for appellant.

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