Ives v. Wis. Cent. Ry. Co.

• Decision Date: 08 May 1906
• Citation: 107 N.W. 452,128 Wis. 357
• Parties: IVES v. WISCONSIN CENT. RY. CO.
• Court: Wisconsin Supreme Court

128 Wis. 357

107 N.W. 452

IVES

v.WISCONSIN CENT. RY. CO.

Supreme Court of Wisconsin.

May 8, 1906.

Appeal from Circuit Court, Chippewa County; A. J. Vinje, Judge.

Action by Kate Ives, administratrix of the estate of Amos Ives, against the Wisconsin Central Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Action by plaintiff to recover for the death of her husband, caused by alleged negligence of the defendant. Decedent was a section hand employed by defendant, and had had several months experience in that employment. About 7 o'clock in the morning he, together with another section hand and the section boss, and at the direction of the latter, started in a dense fog eastward from Stanley to go to their work at the next station, riding on a railroad velocipede. They heard a passenger train come into the station from the east, but knew they had plenty of time to reach a road crossing about three-quarters of a mile from the station before that train would leave. They also knew and spoke of the possibility of a freight train, No. 29, arriving to meet the passenger, the freight being then nearly half an hour overdue. They progressed at the rate of about four miles an hour to within approximately 200 feet of the road crossing when suddenly the freight train was seen through the fog approaching them at a distance of 300 or 400 feet. They stopped the velocipede as quickly as possible, one sectionman jumped to the north side of the track, and the decedent, who was seated on the bicycle between the rails, attempted to go to the north side of the track, but evidently just failed to escape the engine, some portion of which struck him on the head and shoulder, causing death. The train was running rapidly, about 25 miles according to its engineer, and about 40 miles per hour according to the section boss. The road crossing mentioned was the eastern limits of the city of Stanley, so that the place of injury was within those limits where a speed of more than 15 miles per hour is prohibited by law. The section man heard no whistle or bell rung before the crossing, but the train crew all testified positively to the blowing of the whistle and the sounding of the bell. The section boss testified that the rattle of the velocipede would seriously embarrass, if not prevent, him from hearing such sounds. It was customary for trains to run at high rates of speed through the yards at Stanley, which deceased had for months abundant opportunity to observe. The evidence tended to show that train No. 29 was running faster than was usual for such a train. At the close of the evidence the court directed a verdict for the defendant on the ground that deceased had assumed the risk from which his death had resulted. From judgment on such verdict the plaintiff appeals.W. H. Frawley (H. B. Walmsley, of counsel), for appellant.

Howard Morris and Thomas H. Gill, for respondent.

DODGE, J. (after stating the facts).

The case of Hinz v. C., B. & N. W. Ry. Co., 93 Wis. 16, 66 N. W. 718, adopting the views expressed in Pa. Ry. Co. v. Wachter, 60 Md. 395, declares the rule that section men upon railroads assume the risk of trains of all sorts, regular or “wild,” running over the tracks at all times and at such rates of speed as are attainable, and that, too, without notice or any warning except such as results incidentally from the ordinary noises of the train including, of course, such bell and whistle signals as are customary. Plaintiff's decedent met his death from such a risk. Nonliability is the legal conclusion from that situation.

Appellant seeks escape from that result, first, by reason of the fact that the accident occurred within the limits of a city where a speed greater, certainly than 15 miles per hour, perhaps than six miles, was prohibited by law. However meretricious, and therefore negligent, such lawlessness may be, yet the breach of the law results in no liability to one who, knowing it to be a custom of the company in the management of its business, accepts and continues in an employment exposing him to peril from such practice. Abbott v. McCadden, 81 Wis. 563, 51 N. W. 1079, 29 Am. St. Rep. 910;Williams v. Wagner Co., 110 Wis. 456, 86 N. W. 157;Kreider v. Wis. Co., 110 Wis. 645, 657, 86 N. W. 662. That defendant was accustomed to run its trains through the city of Stanley at full speed without regard to the legal limit, and that deceased knew it, was undisputed, indeed, proved by the only eyewitness of the tragedy whom plaintiff called. Hence the fact that the speed of the train in question was illegal is of itself without significance.

Another contention of appellant is that this train was running at a speed greater than freight trains ordinarily maintained through the city, and especially much greater than that of freight trains approaching the station with the purpose of entering a side track to allow a passenger train to pass, as was that which caused the injury; hence the risk was not a usual one and not assumed. This argument confuses the risk which deceased assumed with considerations of what might constitute other forms of contributory negligence with reference to this particular train. Assuming that he knew...