Kalashian v. Hines

• Decision Date: 04 May 1920
• Citation: 171 Wis. 429,177 N.W. 602
• Parties: KALASHIAN v. HINES, DIRECTOR GENERAL OF RAILROADS.
• Court: Wisconsin Supreme Court

171 Wis. 429

177 N.W. 602

KALASHIAN

v.HINES, DIRECTOR GENERAL OF RAILROADS.

Supreme Court of Wisconsin.

May 4, 1920.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by John Kalashian against W. D. Hines, Director General of Railroads, operating the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff, a railroad section man in defendant's employ, was on May 20, 1919, at about half past 3 o'clock in the afternoon, in defendant's yard at North Fond du Lac, run over by a switch engine, losing both legs. He was about 37 years of age, by birth an Armenian, and had been in this country 5 years. He was able to talk but slightly, if any, in any language than that of his birth, and could not read or write. He had been employed as section man for the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for about 3 months prior to the injury and had had about 4 years experience as such section man.

In the switchyards in question there were maintained three main lead tracks running substantially north and south at a point where they were diagonally intersected by a public highway called the Lake Shore Drive. The yard was used for the breaking up and making up of freight trains, and the plaintiff was familiar with the situation and the use of said tracks, and during the period of his employment had been living in a bunk car within a few feet of the track and but a short distance from the point where he was injured. The ground at this location was level, and there were no buildings or other obstructions to the sight so far as the switch engine in question and the location involved in this accident are concerned. On the afternoon in question, the section crew with which he was working were required to load material and tools on their hand car at the place where it was then located south of the Lake Shore Drive and just a little to the east of the most easterly of the tracks.

The foreman of the crew was in the toolhouse which was located west of the tracks and just north of the Lake Shore Drive, and the plaintiff was there given by such foreman a keg of railroad spikes, weighing about 25 pounds, which he carried in his arms in front of his body at the same time having, as he testified, his maul on one arm. He was directed by the foreman to proceed in a hurry towards the hand car at which were already one or more of his fellow section men. He started from the toolhouse in a southeasterly direction toward the hand car. As he stepped out of the toolhouse, his testimony is to the effect that he looked to the north and saw the switch engine in question then coupled to several cars but standing at a point at least 60 feet north of the said Lake Shore Drive. The distance of the hand car was about 200 feet from the toolhouse. He did not look again toward the switch engine. Just as he was stepping over the west rail of the center of the three lead tracks and at a point 144 feet from the door of the toolhouse from which he started and from which he had been approaching the track at an angle of about 30 degrees, he was struck by the switch engine coming from the north, resulting in his injury. The switch engine with seven or eight cars attached stopped within about 25 feet after so striking the plaintiff. The point where the accident occurred was 119 feet south from the crossing of the center track with the Lake Shore Drive, and the width of that highway was 60 feet.

The place where it was planned to go with the section crew of which plaintiff was a member, together with the material which was being taken to the hand car, was to a transfer track about 300 feet long between the Sault line and the St. Paul Railway about a mile and a half from where the accident occurred. The purpose in so going was to repair such transfer track which had become out of order by reason of an engine having been derailed thereon.

Defendant's records were produced by plaintiff on the adverse examination of one of the defendant's clerks, and it appeared therefrom that for a period of at least a month prior to the time of the injury loaded freight cars received from points without the state of Wisconsin and consigned to firms in Fond du Lac were almost daily moved over such transfer track. After a number of such records had been offered on plaintiff's behalf, the court then suggested to plaintiff's counsel, “Haven't you gone far enough with this?” to which suggestion plaintiff's counsel acceded, and defendant's counsel said, “That is all.” The court then said:

“I don't see that there is any question about the proposition that this is a connecting track used indiscriminately for interstate purposes.”

No objection was interposed by defendant to such disposition of the question, and no testimony was offered by defendant as tending to impeach or contradict the effect of such record testimony as to the transfer track being used for switching cars containing shipments of interstate freight.

But two of the several grounds of negligence alleged in the complaint were submitted to the jury by the trial court in the special verdict. By such special verdict the jury found as follows:

(1) The engine crew did not use ordinary care in respect to keeping a lookout ahead as they approached the plaintiff.

(2) The engine crew did not use ordinary care in respect to ringing the bell as they approached the plaintiff.

(3) That such want of ordinary care thus found was the proximate cause of plaintiff's injury.

(4) That there was a want of ordinary care on plaintiff's part that proximately contributed to produce his injury.

(5) That plaintiff's negligence contributed to his injury in the proportion of 40 per cent. as compared to the total negligence of the engine crew and his own negligence.

(6) The plaintiff did not know that the engine crew were likely to move the engine south of the road without ringing the bell.

(7) The plaintiff did not know that the engine crew were likely to move the engine south of the road without keeping a lookout ahead.

(8) “Would a person of plaintiff's experience, information, intelligence, and knowledge of the English language have known, in the exercise of ordinary care, that the engine crew was likely to move the engine south of the road without ringing the bell? Ans. No.”

(9) A question similar to No. 8, but inquiring as to the moving of the engine without keeping a lookout ahead, which was also answered no.

(10) $25,000 will compensate the plaintiff for his injuries.

After respective motions by the parties, the court directed a verdict in favor of the plaintiff for 60 per cent. of the amount of the verdict with interest, costs, and disbursements.

From the judgment entered in accordance therewith defendant has appealed.

W. A. Hayes, of Milwaukee, and John F. Kluwin, of Oshkosh (T. L. Doyle, of Fond du Lac, and Paul Stover, of Milwaukee, of counsel), for appellant.

Barton & Kay, of St. Paul, Minn., and Walter D. Corrigan, of Milwaukee, for respondent.

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

The substance of appellant's contention on this appeal is:

(1) That the plaintiff was not so employed in interstate commerce as to bring his right of action within the federal Employers' Liability Act, and that his sole right was under the provisions of the Workmen's Compensation Act of Wisconsin (St. 1919, § 2394--1 et seq.).

(2) In submitting to the jury any question as to alleged negligence on the part of the defendant as a proximate cause of the injury and in sustaining their verdict in so finding.

(3) In failing to hold as a matter of law and in sustaining the verdict of the jury in finding that the plaintiff's negligence was not the sole cause of his injury.

(4) In failing to hold as a matter of law that the injuries which the plaintiff received were by reason of a risk which he had assumed under his employment.

(5) For the court's failure to submit a question, in the special verdict, as to the assumption of risk and in submitting questions 8 and 9 above specified, and in failing to give appropriate instructions as to the assumption of risk and giving erroneous instructions on the question of defendant's alleged negligence.

It must be considered as an accepted fact in this case that at the time of the injury the plaintiff was, within the scope of his employment, proceeding to the hand car for the purpose of immediately going with the rest of the section crew to repair a portion of the tracks used by the Sault Railway in interstate as well as intrastate traffic.

[1] The evidence from defendant's own records as to the character of freight that was being transported practically daily over this transfer track, and further offer of such class of testimony being stopped at the suggestion of the court as quoted from the record, and the evident acquiescence by defendant's counsel at that stage of the case with the ruling of the court, makes it clear that it was not disputed on the trial, and cannot now be urged, that the track proposed to be repaired was not clearly an instrumentality used in interstate commerce. It was as much so as was the bridge at which the injured plaintiff was employed in carrying spikes in the case of Pedersen v. D. L. & W. Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, or where the injured employé was removing snow between tracks used for both kinds of traffic, N. Y. Cent. R. Co. v. Porter, 249 U. S. 168, 39 Sup. Ct. 188, 63 L. Ed. 536; and the ruling in those cases we consider binding upon us in the instant case. The following cases also are in point: L. & N. R. R. Co. v. Parker, 242 U. S. 13, 37 Sup. Ct. 4, 61 L. Ed. 119; So. Ry. Co. v. Puckett, 244 U. S. 571, 37 Sup. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918B, 69; P. B. & W. R. Co. v. Smith, 250 U. S. 101, 39 Sup. Ct. 396, 63 L. Ed. 869;Frazier v. Hines (D. C.) 260 Fed. 874;Kansas City S. R. Co. v. Martin (C. C. A.)...