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

• Citation: 104 Wis. 166,80 N.W. 586
• Parties: KERRIGAN v. CHICAGO, M. & ST. P. RY. CO.
• Decision Date: 20 October 1899
• Court: United States State Supreme Court of Wisconsin

104 Wis. 166

80 N.W. 586

KERRIGAN

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

Supreme Court of Wisconsin.

Oct. 20, 1899.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action by John E. Kerrigan against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.H. H. Field and Losey & Woodward, for appellant.

Joseph F. Cuddy and C. L. Hood, for respondent.

CASSODAY, C. J.

This is an action for damages sustained by the plaintiff while in the employ of the defendant as fireman on engine No. 190, running between La Crosse and Austin, Minn., on the evening of February 19, 1897, at Grand Meadow, Minn., by reason of a defective step on the front end of the engine. Issue being joined, and trial had, the jury returned a verdict in favor of the plaintiff, and assessed his damages at $7,500; and from the judgment entered thereon the defendant brings this appeal.

It is said by the plaintiff's counsel, in effect, that the step consisted of an upright shaft about 13 inches long, with a circular disc about 5 1/2 inches in diameter at the upper end, and a shoulder at the lower end, terminating in a stem 2 inches long and 7/8 of an inch in diameter, provided with a thread extending the entire length thereof, and a 7/8-inch nut; that this stem was inserted into and extended through a hole of corresponding size in a sheet-iron deck 3/16 of an inch in thickness, covering the pilot frame; that there was a washer laid over the hole, on top of the deck, and under the shoulder of the shaft, and the stem was fastened on the under side of the deck with the washer below by a nut screwed onto the stem, and, when turned up tight, held the stem firmly in place; that this step had been on the engine a number of years, and was for the use of the fireman in attending the headlight of the engine. The plaintiff had been fireman on that engine, of which James McLindon was the engineer, for 3 years prior to the accident, and he testified, as to his familiarity with the step, and the manner in which the accident occurred, to the effect: That he was at the time of the accident 33 years of age. That his attention was first called to the loose condition of the step 5, 6, or 7 months before he was hurt at Austin roundhouse. That in doing his work around the engine he found the step loose. That the truckman was putting in a pair of trucks, and he was talking with him, and saw that the step was loose, and had him tighten it up. That the next time the engineer found it loose, February 17, 1897, at Houston, Minn. That when they got to Rushford he took the step off, and put it on the corner of the tank, and brought it to Austin. That he then reported it, and had it fixed. That he had seen the paper shown him, and in evidence, on the hook in the roundhouse at Austin at the boiler-makers' work bench, and which paper reads as follows: “Report of Engine 190. After careful inspection on arrival at Austin, 11:55 a. m., 2--17. Engine in good condition with following exception: Fasten step on front end. Thread is stripped. McLindon, Engineer.” Indorsed on back: “Repaired at Austin.” That the next notice he had that the step was loose was the next morning, in the roundhouse at North La Crosse, February 18, 1897,--the day before he was hurt. That he laid his hand on the step, and found it was loose. That he took the wrench, and tightened it up. That he called the attention of the engineer, McLindon, and the roundhouse foreman to it. That the foreman's business was to see that all work reported was done. That he had charge of everything in the roundhouse,--general repairs. That the roundhouse foreman said the step was dangerous in that condition. That he wanted them to either fix it, or put in a new one. That he did not fix it. That the plaintiff went, and got a wrench, and tightened it up. That he next noticed that the step was loose on their outward trip the next day, in the forenoon of February 19, 1897. That he then noticed the step was loose as they were going into the station at Wykoff, about 73 miles west of La Crosse, and 39 miles east of Austin. That it was about 10:55 a. m. when they arrived at Wykoff. That as they were going into the station he was sitting on his seat, and ringing the bell. He saw that the step was wobbling back and forth. That he told the engineer that the step was loose again. That the engineer told him to go and take it off, and throw it onto the tank, the same as he had done on the previous trip; but that he did not do it. That he found it was just as well up there, as he would not have to use the step at all until he got to Austin. That was in the daytime. That that was where the step belonged. That there was no more reason for the step remaining on there than on the previous time when the engineer took it off. That it might as well be on the tank as on the pilot. That the engineer told him to take it off, but that he did not take it off, but did go out and tighten it, instead of taking it off, as the engineer had told him. That he went and tightened it up again with his wrench. That the nut was still on. That when he spoke of the step as having got loose at these different times he meant simply that the nut worked off, so that it did not hold tight against the plate. That all he had to do was to put the wrench on it, and tighten it up. That the next he observed anything with reference to the step was when they got to Austin, on February 19th. That he guessed the engineer knew that he did not take it off. That the engineer would assume that he (the plaintiff) had taken it off, as he had told him to do so. That, after they got to Austin, he got a wrench himself, in the engine, as Myers had requested, and held the step while Myers took off the nut. That the nut was still on, and there was one or more washers on below the deck plate and one above. That he did not take the step out of the hole. That it remained in a standing position. That he did not know what he did, but when he came back he had the washers in his hand. That the plaintiff held on to that round piece while Myers started the nut on. That he stayed and held it while Myers went for more washers, and put some of them on, and that he held it while Myers tightened it. That he did not take it out of the hole at all. That there was nothing he did to the top of it. That the large washer was still on the top. That Myers said he put a jamb nut on,--half a nut. That he did not see him have the jamb nut in his hand. That a jamb nut...