Kelly v. Wis. Cent. R. Co.

• Decision Date: 01 June 1885
• Citation: 63 Wis. 307,23 N.W. 890
• Parties: KELLY, ADM'R, ETC., v. WISCONSIN CENT. R. CO. AND OTHERS, TRUSTEES.
• Court: Wisconsin Supreme Court

63 Wis. 307

23 N.W. 890

KELLY, ADM'R, ETC.,

v.WISCONSIN CENT. R. CO. AND OTHERS, TRUSTEES.

Supreme Court of Wisconsin.

Filed June 1, 1885.

Appeal from circuit court, Fond du Lac county.

A. A. Kelly and Duffy & McCrary, for appellant.

Edwin H. Abbot and Howard Morris, for respondents.

ORTON, J.

This is an appeal from the order sustaining a general demurrer to the complaint, on the ground that it does not state a cause of action. The following facts are stated in the complaint: The intestate was, and had been for a long time, a brakeman on one of the freight trains of said company, which ran between Fond du Lac and Menasha, and it was his duty to couple freight cars to the caboose. On the day the intestate lost his life, the train was run out on a side track at Fond du Lac for the purpose of coupling a freight car which belonged to the Chicago, Milwaukee & St. Paul Railway Company to the caboose at the rear end of said train. The coupling iron of the freight car was too high and that of the caboose was too low for such coupling; and when the train moved up towards the caboose, the intestate stepped between the freight car and the caboose, and, in attempting to do such impossible coupling, the coupling irons passed by each other over and under, and the intestate was caught between the platform of the caboose and the end of the freight car, and crushed and killed. The duty of the company to provide cars of suitable couplings and adapted to each other, and the negligence of the company in not doing so, and in allowing such a freight car of another company to be brought upon the track to be so coupled, and the care and prudence of the intestate, were alleged.

The want of adaptation of these two cars to each other (in all respects properly constructed in themselves) was the only defect, and the furnishing of them by the company and requiring them to be so coupled constituted the only negligence of the company complained of. There is no reason stated why the intestate did not or could not have discovered this apparent want of adaptation of the coupling irons of the caboose and car. It was presumably in the day-time, as it is not stated that it was in the night. That the coupling irons were so widely mismatched would seem to have been as observable and readily seen as the entire absence of coupling irons, one or both. It is not to be inferred that this was the only instance where the cars of different roads, brought together to be coupled, were so mismatched. It might rather be inferred that not unfrequently they have coupling irons higher or lower than each other, and that there is no reasonable assurance that they are always adapted to each other in this respect. This would seem to impose the duty upon the brakeman, before going between such cars and the caboose, or cars of the road on which he is employed, to couple them together, to observe more closely and to use more caution than if he was attempting to couple the cars of his own road, which are adapted to each other by construction or selection, in order to ascertain whether their coupling irons would meet or pass each other. There is no allegation that he even looked to see, or that he could not have seen if he had looked, this clearly apparent difference in the elevation of these coupling irons, or that his attention was diverted.

The difference in the elevation of the coupling irons of this foreign car and the caboose or other cars of the defendant's road would not have been very easily or readily observed when they were distant from each other, and yet the company is sought to be held liable for its want of ordinary care in not knowing this difference when consenting to take this foreign car into its train. When the car and the caboose were brought nearly together this difference could have been at least much more readily seen and observed by comparison. The company is charged with negligently endangering the lives of its brakemen by not knowing of this difference, and, if presumed to know of it, in allowing this car to be attached to its train; and the intestate is alleged to have been in the use of proper care when he endangers his own life by not seeing, observing, or knowing of such difference in the elevation of the coupling irons. Did not the intestate...