Hullehan v. Green Bay, W. & St. P. R. Co.

• Decision Date: 22 March 1887
• Citation: 32 N.W. 529,68 Wis. 520
• Parties: HULLEHAN v. GREEN BAY, W. & ST. P. R. CO.
• Court: Wisconsin Supreme Court

68 Wis. 520

32 N.W. 529

HULLEHAN

v.GREEN BAY, W. & ST. P. R. CO.

Supreme Court of Wisconsin.

March 22, 1887.

Appeal from circuit court, Trempealeau county.

E. C. Higbee, for respondent.

Geo. G. Greene, for appellant.

TAYLOR, J.

The respondent was a brakeman on the appellant's road, and received an injury while in its employ. At the time of receiving the injury, he was in the act of coupling cars of said company on said road in the usual course of his employment. This action was brought to recover damages of said company for the injury so received. The grounds upon which the plaintiff seeks to charge his injury to the negligence of the company are set forth in the complaint substantially as follows: That it was the plaintiff's duty, as such brakeman, to go between the freight and other cars for the purpose of coupling and uncoupling the same, using the appliances therefor provided by the company, and that it was the duty of the company to provide safe and suitable appliances therefor, and to keep its track in repair and free from obstruction, as well along the side of the track as within it, so as not unnecessarily to expose its employes to danger of personal injury; that, notwithstanding the duty of the defendant in the premises, “the defendant, on the eighteenth of November, 1882, and for a long time prior thereto, carelessly and negligently suffered and allowed loose blocks of fire-wood to be scattered about near its said track, and along and close to the margins thereof, near Plover station, on the west side of said road, where the plaintiff and other brakemen were obliged, in performing their duties, to run along the side of said track and couple and uncouple cars, thereby rendering it unnecessarily dangerous to said plaintiff and other brakemen in the performance of their duties.” The complaint then states the manner in which the plaintiff was injured as follows: “That on or about the said eighteenth day of November, 1882, and at or near the said place or station called Plover, while the said plaintiff was in the employ of said defendant, as aforesaid, it became the duty of said plaintiff, as brakeman, and necessary, that he should go quickly between a box car and a flat car to make a coupling, so called,--that is, to couple the box car, which was being pushed towards the flat car, which was standing, to the flat car; that said plaintiff attempted to do so, as he was in duty bound to do, when his toe or foot struck against one of the said pieces or blocks of wood or fire-wood, without any negligence or carelessness on his part, but wholly through the shiftlessness and carelessness of the said defendant, as hereinbefore set forth, and said plaintiff was thrown with great force, head first, in between said cars, and, to save himself from being cut in two, he caught hold of the draw-bar of the flat car at the same time as the draw-bar of the box or moving car came in collision with it, smashing two fingers of the left hand of said plaintiff, and permanently and for life maiming and crippling a third finger, so that two fingers had to be cut off entirely, and the third left comparatively useless; that said accident was caused wholly by the shiftlessness and carelessness of said defendant in allowing its said track, and the margins thereof, to be incumbered and obstructed by the said loose blocks of wood, and without any fault whatever on the part of said plaintiff.”

The defendant company demurred to this complaint on the ground that it did not state facts sufficient to constitute a cause of action. The circuit court overruled the demurrer. From the order overruling such demurrer the defendant appealed to this court, and upon such appeal this court affirmed the said order, holding that the complaint did state facts sufficient to constitute a cause of action. See 58 Wis. 319-323, 17 N. W. Rep. 17. The cause was remitted to the circuit court, and the defendant answered the complaint by admitting that it was a corporation and operated a railroad, as alleged in said complaint; admitted the employment of the plaintiff as alleged in the complaint, and that by such employment it was his duty to couple and uncouple cars on said railroad as occasion should require. As to all the other allegations of the complaint the answer was a general denial.

On the trial in the circuit court the jury were directed to find a special verdict, and they found a special verdict as follows: “(1) Were the injuries complained of by the plaintiff caused by the negligence of the defendant? Answer. Yes. (2) If you answer the first question in the affirmative, state in what such negligence consists. A. In allowing sticks or blocks of wood to remain along the track. (3) At the time of plaintiff's injury, how long had sticks or blocks of wood, substantially as they remained at the time of the injury, existed along the track where plaintiff was injured? A. Several days. (4) Did the existence of such blocks or sticks of wood make it dangerous for brakemen to couple cars at the place of the injury? A. Yes. (5) Were the sticks or blocks of wood along the track at the place of injury allowed to fall there by the employes on the train in loading the tender? A. Yes. (6) Of the defendant's employes, whose duty was it to remove such blocks and sticks? A. Section foreman. (7) Did not the blocks or sticks exist along the track, substantially the same, at the time of the injury, as at the time when plaintiff commenced work as brakeman? A. Yes; about the same. (8) Did plaintiff know of such blocks and sticks existing along the track at the time of the injury in question? A. No. (9) At what sum do you assess the plaintiff's damages? A. $1,300.”

After the rendition of the special verdict, and at the same term, the defendant moved the court for a judgment in its favor on such special verdict. This motion was denied by the court, and the defendant excepted, and thereupon moved the court, on the judge's minutes, for a new trial, and to set aside the verdict, on the grounds stated in the printed case. This motion was also denied, and the defendant excepted. On the plaintiff's motion, judgment was rendered in his favor on said verdict, and from said judgment the defendant again appeals to the court.

We think the decision upon the demurrer in this case must be held as conclusive upon the appellant that it was negligence on its part to permit its tracks to be incumbered with sticks and blocks of wood, in the manner alleged in the complaint, at all places where the plaintiff was called upon to perform his duties in coupling or uncoupling the cars of the defendant. The allegation in the complaint is “that it was the duty of the company to provide safe and suitable appliances for coupling and uncoupling its cars, and to keep its track in repair, and free from obstructions, as well along the side of the track as within it, so as not unnecessarily to expose its employes to danger of personal injury,” and it then alleges facts showing that such duty had not been discharged by the company. This court having held that the complaint stated facts constituting a cause of action, it would seem that if, upon the trial, the facts are proved which are alleged in the complaint as establishing the neglect of such duty, imposed by law upon the defendant to be discharged towards the plaintiff, its employe, the defendant cannot be heard to say in this case that no such duty rested upon it. That question was settled against him on the former appeal. The only questions to be determined upon the trial of the case are: (1) Has the plaintiff established by proofs the facts set up in the complaint as constituting the negligence charged against the company? (2) Whether such negligent acts, if proved, were the cause of the injury to the plaintiff. (3) Whether the plaintiff had such knowledge of the neglect of the company, in...