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

• Decision Date: 13 March 1917
• Citation: 165 Wis. 610,161 N.W. 751
• Court: Wisconsin Supreme Court
• Parties: JACOBY v. CHICAGO, M. & ST. P. RY. CO.

165 Wis. 610

161 N.W. 751

JACOBY

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

Supreme Court of Wisconsin.

March 13, 1917.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Margaretha C. Jacoby, as administratrix of the Estate of Nicholas F. Jacoby, deceased, for damages for wrongful death of said deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

At the place of the accident, which is about 300 or 400 feet west of Merrill Park Passenger depot in Milwaukee, are the two parallel main tracks of the defendant, the one to the south being the east-bound. At a distance of about 10 feet to the south of the east-bound track was a side track about a mile and a half long, connecting at the east and west ends thereof with the main track by a switch and known as Merrill Park track 1. To the south of this side track were 9 or more parallel switch tracks of varying length connected at the east end with this track 1. To the south and west of the place in question are the roundhouses and car shops of the defendant company, and to the south and east of Merrill Park station are the foundry and machine shops of the Falk Company. The car shops are quite extensive, cover a large number of different shops and a large number of tracks, substantially all connecting with the main tracks or the tracks above specified. About 700 feet west of the Merrill Park station and therefore several hundred feet beyond the place of the accident was a roadway through the car shop yard and over the tracks in question, which roadway was maintained by the defendant and used to a large extent by employés in crossing these tracks. Flagmen were stationed there at certain hours of the forenoon and evening when there were a large number of employés so crossing to give warning of trains to such employés. Numbers of employés also crossed these tracks at all points other than this roadway.

The deceased had worked for the defendant at the car shops for 10 or 12 years as a clerk in the receiving department, but for the 4 or 5 months before he was killed he had been employed as car clerk in the same department. His duties as such required him to go to and from the storehouse, situated some distance to the south and west of the place of the accident, and to go through the yards and shops of the defendant in that neighborhood and ascertain the numbers of the cars and the material therein of cars coming and going from both within and without the state of Wisconsin, loaded with material that belonged to and was used by only the railroad company itself. He kept a record of the time when, and the numbers of the cars unloaded with such material and the total amount on tracks at the time. He would also seal cars loaded with such material to be shipped to points without the state of Wisconsin and place cards on the same, showing the switchmen where such cars were to be switched, and doing the same to the cars going to different shops in that yard. The cars with which he was concerned were loaded with materials such as lumber, steel, iron, etc., used for car and engine building and repairing, also general supplies for the railroad, and machinery for the shops. On August 5, 1912, the day preceding his death, the deceased had obtained a leave of absence for the 6th of August to attend to some private business at Port Washington, Wis., with the understanding that he was to go to the yards early in the morning of the 6th and make up his report of the cars standing on the tracks, as required by his employment.

It appears that on the morning of August 6th he did examine and make up a list of such cars and left the report of the same at the storehouse as customary. Upon completion of his duty in connection with such report he left the storehouse, went in a northeasterly direction east of the roadway above specified and across the side tracks that have been described as lying south of the place of the accident.

On Merrill Park switch track No. 1 were a number of stock cars standing unattached to any locomotive. He was last seen before the accident in the act of climbing between two of these stock cars and jumping over the bumpers into the 10-foot space between this side track and the east-bound main track. From there he went immediately to the north and upon the east-bound main track, and was struck and instantly killed by a switch engine backing east on that main track at a speed of five to six miles an hour.

The complaint alleged violation by defendant of the provisions of section 1810, Wis. Stats., in that the defendant failed to inclose its right of way, and had carelessly omitted the construction of fences and guards required by the provisions of said section. It also alleged that the deceased was at the time of the accident lawfully leaving the defendant's premises where he was employed in interstate commerce, and demanded judgment for $25,000.

The answer, among other things, denied that the deceased was on the day in question in the employ of or rendering services to the defendant, or any carelessness on its part causing his death, and alleged that the death was caused by the carelessness and negligence of deceased himself, and further denied that at the time he was killed he was engaged in interstate commerce, but during the trial the defendant was allowed to amend by alleging that deceased was at the time of the injury so engaged.

At the commencement of the trial the plaintiff moved to amend the complaint by alleging that the deceased was in intrastate and not in interstate commerce. It does not appear that any ruling was had upon this motion, but during the trial the plaintiff offered in evidence the paragraph of the answer quoted above denying that at the time of the accident the deceased was engaged in interstate commerce, and thereupon defendant moved to amend the answer by withdrawing that allegation, which amendment was allowed by the court, but the statement in the answer was received in evidence. The court permitted the plaintiff over objection by defendant to prove the number and ages of the children of deceased surviving him.

A special verdict was submitted to the jury in three questions, by the first of which the jury found that the premises where deceased was killed was not a part of defendant's depot grounds; and by the second that the death was occasioned in whole or in part by the want of a fence between the track on which he was killed and the first track south thereof; and by the third question that the financial loss sustained by plaintiff as the result of her husband's death was $10,000. In the charge to the jury on the third question the court said:

“The damages in a case of this kind are restricted to the pecuniary loss sustained by the widow, and under the statutes, the damages which you assess cannot exceed the sum of $10,000.”

Upon motions duly made after verdict the court made a written decision, wherein, among other things, he stated that the series of ten tracks, including Merrill Park No. 1, which have been described above, “were used solely in connection with the defendant's plant for temporarily storing cars before and after repairing them in the shops”; that at the place of the accident there is no siding or switch track actually used in connection with the movement of freight or passenger trains along those two tracks; that the deceased was chargeable with contributory negligence so that recovery could only be had upon the theory that section 1810 required the defendant to maintain a fence to the south of the track in question. He reached the conclusion that the statute required the defendant to maintain a fence between the track on which Jacoby was killed and the first track south thereof; that the damages were excessive and should be reduced to $7,000, and upon plaintiff's election to so remit judgment was directed in favor of the plaintiff, from which judgment the defendant appeals.

C. H. Van Alstine and H. J. Killilea, both of Milwaukee, for appellant.

William F. Schanen, of Port Washington (James D. Shaw, of Milwaukee, of counsel), for respondent.

ESCHWEILER, J. (after stating the facts as above).

The questions presented on this appeal are four: (1) Was the deceased at the time of the accident engaged in interstate commerce? or (2) if not a case subject to the federal law, did the provisions of section 1810, Wis. Stats., the so-called fencing statute, apply, and was it rightly applied under the facts in this case by the trial court? (3) Was there reversible error in the charge of the court? or (4) in the admission of evidence as to the children of the deceased.

No issue is raised by plaintiff on the point that if the deceased was at the time of the accident engaged in interstate commerce the federal law would apply, and there would be no liability, and citation of cases therefore is unnecessary.

[1] In a case of this kind, in order that it shall come within the purview of the federal statutes it must appear that at the time of the accident both the carrier and the employé were actually engaged in interstate commerce. Shanks v. Del., L. & West. Rd. Co., 239 U. S. 556, 560, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797;Zavitovsky v. C., M. & St. P. Ry. Co., 161 Wis. 461, 154 N. W. 974.

[2] Whether the general employment of the deceased in the yards of the defendant in and around its car shops in checking over and keeping account of the cars loaded with material belonging to defendant itself, many of which cars were received from and others consigned to points outside of the state of Wisconsin, brought him within the rule of such cases as St. Louis, etc., Ry. Co. v. Seale, 229 U. S. 156, 159, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156, is not necessary to be and is not determined in this case.

It appears from the uncontradicted testimony that the deceased had completed all of the...