Lee v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 16 December 1898
• Citation: 77 N.W. 714,101 Wis. 352
• Parties: LEE v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: Wisconsin Supreme Court

101 Wis. 352

77 N.W. 714

LEE

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

Supreme Court of Wisconsin.

Dec. 16, 1898.

Appeal from circuit court, St. Croix county; E. W. Helms, Judge.

Action by Sever A. Lee against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.L. K. Luse and Thomas Wilson, for appellant.

W. F. McNally, for respondent.

CASSODAY, C. J.

This action is to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant as rear brakeman on a freight train. It appears from the record, and is undisputed, that the defendant's line of railway coming into the station of Gordon from the north crosses a trestle spanning the St. Croix river; that the top of the trestle consists of square ties laid 5 inches apart, upon which the rails of the track, including guard rails, are laid, the ties being 12 feet in length and the width of a box car 9 feet 7 1/2 inches; that south of this trestle is the station of Gordon, with a passing track to the west of the main track, extending from the 900-foot mark south along the track beyond the station; that January 17, 1895, about 8:35 a. m., a freight train of 30 loaded cars, running south, was about to pass on the side track at the switch south of the south end of the trestle for the purpose of passing the passenger train running north to Duluth; that the freight, in attempting to head in upon the side track, broke into two sections upon the trestle; that the forward section consisted of the engine and about 21 cars, and the rear section consisted of the caboose and about 8 cars. The complaint, which is in the usual form in such cases, among other things, specifically alleges “that when both sections came to a standstill the rear end of the forward section was about four rods distant from the forward end of the rear section; that the plaintiff, acting within the line of his duty as such rear brakeman, procured a new link, and coupled it to the rear end of the forward section of said train, and then gave the usual signal for said forward section to back up one car length; that said forward section did so back up and stop about ten or fifteen feet from the forward end of the rear section; that this plaintiff then immediately, acting within the line of his duty, and without fault or negligence on his part, stepped to the forward end of the aforesaid rear section for the purpose of drawing the pin, and removing a part of the aforesaid broken coupling link, and while so engaged in drawing said pin and removing said link the defendant and its servants and engineer carelessly and negligently, without ringing the bell or sounding the steam whistle on said train, and without giving the plaintiff any signal or warning whatever, suddenly backed up, and ran said forward section of said train onto this plaintiff”; that the wheels of the train ran over and bruised and crushed the left foot and leg of the plaintiff so that the same had to be amputated near the hip. The answer consists of admissions of certain facts not so specifically alleged, and then denies each and every allegation of the complaint not so specifically admitted. At the close of the testimony the counsel for the defendant requested the court to submit the case to the jury on a special verdict, and at the close of the trial the jury returned a special verdict to the effect: (1) That the defendant's servants in charge of the front section of the train were guilty of a want of ordinary care in backing the same up at the time of the plaintiff's injury; (2) that such want of ordinary care was the proximate cause of the plaintiff's injury; (3) that the plaintiff was not guilty of any want of ordinary care on his part that contributed to his injury; (4) that the plaintiff had suffered damage by reason of his injury to the amount of $4,000. From the judgment entered thereon in favor of the plaintiff for the amount named, with costs, the defendant brings this appeal.

The defendant moved to set aside the verdict and for a new trial for errors in the rulings of the court on the trial; and, among other things, on the ground that the verdict is not sustained by the evidence, but is against the great and substantial preponderance of the evidence, and that it would be unjust to permit it to stand. The only evidence in support of the verdict is the testimony of the plaintiff himself, and that is in direct conflict with the testimony of a large number of witnesses; and, besides, the plaintiff is pretty effectually impeached by his own contradictory statements. The portion of the complaint quoted above and the denials in the answer put in issue five questions upon which there is such conflict: (1) When both sections of the broken train came to a standstill, was the rear end of the forward section about 4 rods distant from the forward end of the rear section? (2) Did the forward section of the train break up and stop about 10 or 15 feet from the forward end of the rear section? (3) Was the bell rung before the train started to back up? (4) Was the forward section of the train suddenly backed up by the defendant's servants without giving any signal or warning? (5) Was the plaintiff guilty of contributory negligence? There is also a sharp conflict between the plaintiff and other witnesses upon the following questions, bearing directly upon those so put in issue by the pleadings: (6) Did the plaintiff walk along in front of the moving section of the train as it moved back, stepping from tie to tie? (7) Did he, in so doing, slip and fall, thus causing his injury? Upon the first of these questions, the testimony of the plaintiff corresponds substantially with his complaint, but it is in direct conflict with at least three witnesses, to the effectthat when they stopped they were from 11 to 14 rods apart. As to the second question so in issue, the plaintiff testified to the effect that after the two sections had so come to a standstill, and he had given a one car length signal, the forward section was backed up about the length or length and a half of a car, and then stopped. At least four of the train men testified to the effect that before the plaintiff gave the signal to back up the forward section had backed up slowly for several rods, and was still backing up when he gave such signal, and did not stop until after the injury; and the same witnesses testified that the forward section at no time suddenly backed up or started up without signal or warning, or at all; and the only witness who saw him give such signal testified that it was not a one car length signal, but a backup signal, which corresponds with the movement of the forward section of the train as testified to by the defendant's witnesses; and in one place the plaintiff testified that he gave a “back-up signal.” It is admitted that July 21, 1894, and about the time the plaintiff commenced work for the defendant, he signed a written agreement to the effect that he would not go “between cars in motion to couple or uncouple them.” It appears that the train was backing when the coupling broke; that when the engine started to go ahead the plaintiff was on the rear section, and noticed that the two sections of the train were parting, and so he set three brakes on that section, and stopped it. The plaintiff gives different versions of the transaction which differ widely from each other. One is to the effect that after the two sections had separated and stopped, he went back to the caboose, in the rear section, and got a link and pin, and then walked along south to the forward end of the rear section, and then pulled out the broken link and put in a good one, and then stepped out to the side of the bridge, and gave the conductor, who was well ahead on the forward section, a one car length signal to back up;...