Kelley v. C., M. & St. P. Ry. Co.

• Decision Date: 10 November 1880
• Citation: 7 N.W. 291,50 Wis. 381
• Parties: KELLEY, ADM'R, ETC., v. C., M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

50 Wis. 381

7 N.W. 291

KELLEY, ADM'R, ETC.,

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

Supreme Court of Wisconsin.

Filed November 10, 1880

Appeal from county court, Milwaukee county.

J. W. & M. B. Cary, for appellant.

Murphy & Goodwin and John M. Connolly, for respondent.

TAYLOR, J.

This is an appeal from an order of the county court of Milwaukee county, overruling the demurrer of the appellant to the respondent's complaint. The complaint is intended to set forth a cause of action for negligently killing or causing the death of John Larkin, of whom the respondent is the personal representative. The complaint sets out the appointment of the respondent as the administrator of John Larkin, deceased; alleges that he left no widow surviving him, but that he left one child, his only lineal descendant, of the age of three years. It then sets out the killing of the said John Larkin while in the employ of the appellant company, and sets out facts which, it is claimed on the part of the respondent, clearly show that his death was caused by the negligence of the company, or its employes, other than the deceased, and concludes by claiming damages against the company for the sum of $5,000, pursuant to the statute in such case made and provided.

The learned counsel for the appellant allege two reasons why, in their opinion, the complaint does not state a cause of action, and why the court below should have sustained the demurrer-- First, because it is said the facts set out in the complaint conclusively show that the death of the intestate was the result of his own carelessness, and not of the carelessness or negligence of the company or its other employes; and, second, that the complaint is bad, because the facts stated do not show that the surviving infant son of the deceased has suffered any pecuniary damage by reason of his father's death.

It is alleged in the complaint that the company, or its servants, negligently permitted two cars to run upon a down grade in the yard where the deceased was at work, without any one in charge of the same, and that, in order to prevent one of them from colliding with a switch engine, the deceased turned a switch to divert the car from the track upon which the engine was standing; and that immediately after turning the same he discovered another unattended car approaching, which would, unless arrested in its course, collide with the first car, and that in order to prevent such last collision the deceased, “without fault or negligence on his part, undertook to climb upon the top of said car so approaching, by a ladder fixed upon the outside of the car for that purpose, in order to set the brake thereon, and thus prevent a collision and destruction of property; and before he was able to do so, and before he had reached the top of said car and while climbing up said ladder, the two cars came together, and caught and squeezed him between the sides of the same, causing his death.” In another part of the complaint it is alleged that it was the duty of the deceased to take care of the company's cars in said yard.

It is insisted by the learned counsel for the appellants that, as it appears from the allegations that the collision took place before the deceased reached the top of the car, it must be presumed that the cars were so near each other, at the time he made the attempt, that it was recklessness on the part of the deceased to make such attempt. We do not think the allegations in the complaint necessarily show that the deceased was guilty of negligence which contributed to his death, and the demurrer was properly overruled upon this point. The allegation of the complaint is that he attempted to get upon the car without fault or negligence on his part, and this allegation must be deemed true, unless the further allegations as to the injury clearly show the falsity of the allegation of the absence of fault or negligence on his part. Upon the trial...