Kressin v. Chi. & N. W. Ry. Co.

• Decision Date: 08 November 1927
• Citation: Kressin v. Chi. & N. W. Ry. Co., 194 Wis. 480, 215 N.W. 908 (Wis. 1927)
• Court: Wisconsin Supreme Court
• Parties: KRESSIN v. CHICAGO & N. W. RY. CO.

194 Wis. 480

215 N.W. 908

KRESSIN

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Nov. 8, 1927.

Appeal from a Judgment of the Circuit Court for Outagamie County; E. V. Werner, Circuit Judge.Affirmed.

Action by Margaret Kressin, widow of Albert E. Kressin, deceased, against the Chicago & Northwestern Railway Company, to recover damages for the death of said Albert E. Kressin, deceased, resulting from the alleged negligence of the defendant.From a judgment in favor of the plaintiff, the defendant appealed.

On March 12, 1925, Albert E. Kressin, plaintiff's deceased, was in the employ of Kimberly-Clark Company as millwright foreman.He was 65 years of age.Kimberly-Clark Company operated a paper plant.The plant was served by an industrial track of the defendant company.This industrial track is laid on a trestle over the mill race.It enters the mill premises from the west, and terminates at a bumping post at the east end.The track is about 8 feet above the surface of the water.It is paralleled by mill buildings on either side.The building on the north is from 25 to 40 feet from the north rail; the building on the south about 6 or 8 feet from the south rail.Runways, or loading platforms, extend from the building on the north to the track, so that mill products may be carried on trucks from mill to car.The floor of the mill, the surface of the loading platform or runway, and the car floor are all on the same level.The floor of the mill on the south side of the track is on a level with the ties.The ties on the trestle at certain places between the mills are covered with planks or decking to enable employees to cross thereon between the mills.The runways leading from the mill doors on the north side of the track to the cars were designated by numbers, commencing with the westernmost number, as follows: “44,”“46,”“48,” and “49.”These platforms were also referred to as “door 44,”“door 46,” etc.There were two doors opening onto the track from the building on the south; the west door being referred to as “door 45,” or the “boiler house door,” and the other as “door 47.”A ramp or sloping platform led from the loading platform, or “door 44,” east, parallel with the track, down to the level of the ties, enabling employees to go from “door 44” down the ramp, across the decking on the track, to the building on the south side, or vice versa.The ramp was 8 feet wide at the top, narrowing gradually to a width of 5 feet at the foot.Its north edge at the foot was about 5 feet 7 inches from the north rail.The decking at the foot of the ramp extended 7 feet 5 inches north from the north rail, and extended easterly towards “door 46”; the east portion of the decking being 3 feet 6 inches wide.

A handrail extended along the north side of this decking to protect those using it from falling into the water beneath.This hand rail extended in an easterly direction, practically parallel with the track, to the eastern extremity of the decking.At the east end of the decking, this handrail extended across the decking at right angles with the track to a point about 12 to 15 inches from the side of a car standing on the track.The rail then angled again in an easterly direction, parallel with the track and joined with the west end of the loading platform at “door 46,” leaving a space about 15 inches wide between the handrail and the side of a box car standing on the track at that place.The corner or angle formed by this last extension is referred to in the evidence as the “offset.”On the afternoon of March 11th a box car was spotted at “door 44,” and another at “door 46.”Some time in the afternoon the car spotted at “door 46” moved down towards “door 44” for some unknown reason.It stopped at a point where its east end was 3 feet west of the “offset,” and at a point where its presence blocked the free passage from the ramp on the north side to the building on the south side of the track, except the space of 3 feet between the east end of the car and the “offset” above described.

About 4 o'clock in the afternoon of March 12th defendant's switching crew came onto the pulp track, in accordance with the usual practice, to take out loaded cars and to set in empties.During the switching operations, plaintiff's deceased was found in an upright position, squeezed between the south edge of the loading platform in front of “door 46” and the north side of the car that had been blocking the passageway.A fellow workman of Kressin, by the name of Geniesse, was also found lying on the ground under the car.Both men were rescued from their positions and died soon thereafter.No witness to the accident testified on the trial.It appeared, however, that Kressin was last seen, about 15 minutes before the accident, on the south side of the track, directly across from “door 46,” walking along the south side of the track in a westerly direction.He did not speak to any one, nor indicate where he intended to go, nor what he was about to do.At the same time Geniesse was seen walking down the ramp from “door 44” along the north side of the track in an easterly direction.He did not speak to any one, nor indicate what he was about to do.In the natural course of events they would have met at about the “offset.”Geniesse was a workman under Kressin, and frequently made reports to, and took orders from, Kressin.

The jury returned a special verdict, finding that the defendant was guilty of negligence which constituted the proximate cause of the injuries.It also found that Kressin was guilty of a want of ordinary care, but that such want of ordinary care was not a proximate cause of the injuries.Upon this verdict judgment was entered in favor of the plaintiff, and the defendant appealed.

J. F. Baker and Llewellyn Cole, both of Milwaukee, for appellant.

Frank, Wheeler & Pelkey, of Appleton, for respondent.

OWEN, J.

Appellant contends that the court committed error in the admission of a declaration made by the deceased Geniesse concerning the manner in which the accident happened.A witness was permitted to testify that one Geniesse was “brought into the first-aid room--as soon as they had him on the cot there--this was probably 20 minutes after the accident”; that Geniesse told him that they were standing “right at the offset in the railing, near the offset, and one rail was about 15 inches from the cars and the other 3 feet from the cars; he said ‘right at that corner they were standing, and the car was about 3 feet away, and then they bumped off the car’; he says he grabbed for Al (Kressin); he said the car door caught him and pulled him right in.”Appellant contends that this testimony was hearsay.Manifestly it was inadmissible unless, as contended by respondent, it comes within the exception of the hearsay rule known as the res gestæ doctrine.

[1]Appellant contends that the declaration was no part of the res gestæ, because the time of the declaration was too remote from the time of the accident.The length of time intervening between the occurrence of an accident and the making of a declaration is not necessarily and at all times controlling upon the question of whether the declaration is admissible.Declarations said to be a part of the res gestæ constitute an exception to the hearsay rule, because of circumstances according credibility to such declarations, and, no matter when such declarations may be made, they are admissible if the circumstances giving rise to the credibility of such declarations still exist.

[2] In discussing the subject of res gestæ, it is said...