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

• Decision Date: 15 May 1900
• Citation: 82 N.W. 710,107 Wis. 122
• Court: Wisconsin Supreme Court
• Parties: HULIEN v. CHICAGO & N. W. RY. CO.

107 Wis. 122

82 N.W. 710

HULIEN

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

Supreme Court of Wisconsin.

May 15, 1900.

Appeal from superior court, Milwaukee county; O. T. Williams, Judge.

Action by Jacobina Hulien, as administratrix of the estate of Charles Hulien, deceased, against the Chicago & Northwestern Railway Company, for the wrongful killing of deceased. From a judgment for defendant, plaintiff appeals. Affirmed.

The plaintiff sues, as administratrix, to recover for the death of Charles Hulien, her husband, which occurred August 3, 1894, at a station called “Wittenberg,” in Shawano county. The deceased was a locomotive engineer, and was employed as such by the defendant at the time of his death, and had been so employed for eight or nine years previously. Upon the day of his death he was operating an engine attached to freight train No. 43 upon the defendant's road. This train was going north, and had arrived at Wittenberg at about 9 o'clock a. m., and pulled in upon the passing track at said station, which was located east of the main track. There was another side track at said station, west of the main track, which was used for loading and unloading freight cars. Shortly after train No. 43 pulled in upon the passing track, freight train No. 50 arrived at the station from the north, and passed down on the main track, and backed in from the south upon the passing track, and stopped with its caboose two or three car lengths south of the rear end of freight train No. 43. These two freight trains were waiting upon the passing track for the regular passenger train going south to pass upon the main track. While thus waiting, the engine attached to train No. 50 was detached from the train, with several cars, and commenced to do switching upon the west side track. While so engaged, the passenger train came in and went south. Soon after the arrival of train No. 50, the deceased left the cab of his engine, taking his fireman with him, and got down upon the east side of his engine, and went under the engine for the purpose of tightening the wedge which holds the driving box in position; his fireman at the same time being engaged in tightening a jam nut upon the east side of the engine. Upon leaving the cab, the deceased did not set the brakes upon his engine or upon the train, although six or seven of the forward cars had air brakes connected with the engine; nor did the deceased or his fireman notify any of the train crew that the engineer was going under the engine, nor did they notify any of the crew of train No. 50 of that fact, nor was any signal placed at the rear end of train No. 43. After the deceased had been under his engine some five minutes, the passenger train having in the meantime passed south, the engine of train No. 50 backed in again upon the passing track with some cars, and backed against the other part of train No. 50, which had been left upon the passing track, and backed up so far that the caboose was forced against the caboose of train No. 43, impelling it forward some 10 or 20 feet, and fatally injuring the deceased, who was still under his engine, from...