Jurkovic v. Chi., M. & St. P. R. Co.

• Decision Date: 13 November 1917
• Parties: JURKOVIC v. CHICAGO, M. & ST. P. R. CO.
• Court: Wisconsin Supreme Court

166 Wis. 266

164 N.W. 993

JURKOVIC

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

Supreme Court of Wisconsin.

Nov. 13, 1917.

Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.

Action by Joseph Jurkovic against the Chicago, Milwaukee & St. Paul Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for personal injuries begun in the civil court of Milwaukee county. On August 5, 1915, plaintiff was in the employ of the Chicago & Northwestern Railway Company and formed a part of a crew of about ten men engaged in moving some frogs preparatory to placing them in the track. They consisted of two rails of from 15 to 18 feet in length, so welded together as to permit a train to pass from one rail to another, and were 2 1/2 feet in width at the widest point. It required about ten men to carry them. Their westerly end lay within about three feet of the east rail of the easterly or north-bound track of defendant's double track running north and south past them. On the day in question one frog had been carried from the pile and deposited some 50 feet to the northeast and about 25 feet east of the east rail of defendant's east track. Upon returning for another frog, at about 9:39 a. m., and just as plaintiff, who was at the westerly end of the pile, was in the act of bending down to take hold and lift the frog, defendant's train, consisting of an engine and 12 cars, came south on the north-bound track, and the pilot beam of the engine struck plaintiff and inflicted the injuries for which damages are sought in this action.

The civil court jury found: (1) Defendant did not give reasonable warning of the approach of the train; (2) it was guilty of negligence in failing to do so; (3) such negligence was a proximate cause of plaintiff's injury; (4) it was apparent to the employés of defendant keeping a lookout just prior to the injury that plaintiff would not seek a place of safety; (5) defendant was guilty of a want of ordinary care in failing to bring the train to a stop after it became apparent that plaintiff would not seek a place of safety; (6) such failure to exercise ordinary care was a proximate cause of the injury; (7) plaintiff was not guilty of any want of ordinary care which proximately contributed to produce the injury; (8) the danger of plaintiff being injured under the conditions as they existed was not such that plaintiff by the exercise of ordinary care should have known and appreciated such danger before the time of his injury; and (9) damages in the sum of $1,500. Judgment for plaintiff was entered upon the special verdict, and upon appeal to the circuit court the judgment was affirmed. Defendant appealed.

Eschweiler, J., dissenting.C. H. Van Alstine, H. J. Killilea, and Roger M. Trump, all of Milwaukee, for appellant.

Joseph G. Hirschberg, of Milwaukee (Horace B. Walmsley, of Milwaukee, of counsel), for respondent.

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

[1] If findings 1, 2, 3, 7, and 9 are sustained by the evidence, then judgment for plaintiff was properly entered, and errors assigned with reference to the submission of, or instructions relative to, findings 4, 5, 6, and 8 become immaterial, unless such errors, if any, were of such character as to prejudice the jury in the making of the other findings. We cannot say that they were. This disposes of a number of assigned errors. It remainsto consider those relating to the findings necessary to sustain the judgment.

[2] Claim is made that since five or six of defendant's witnesses, including the engineer and fireman on the train, testified that the automatic engine bell was rung all the time from Allis station,...