Leora v. Minneapolis, St. P. & S. S. Marie Ry. Co.

• Citation: 146 N.W. 520,156 Wis. 386
• Parties: LEORA v. MINNEAPOLIS, ST. P. & S. S. MARIE RY. CO.
• Decision Date: 17 March 1914
• Court: United States State Supreme Court of Wisconsin

156 Wis. 386

146 N.W. 520

LEORA

v.MINNEAPOLIS, ST. P. & S. S. MARIE RY. CO.

Supreme Court of Wisconsin.

March 17, 1914.

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.

Action by Joseph Leora, by John Leora, his guardian ad litem, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover damages for personal injuries suffered by the plaintiff, who was injured while employed by the defendant. Many of the facts were undisputed. The plaintiff, a youth 17 years and 7 months of age, was employed as a section hand on the defendant's railroad, at the station of Hoyt, about six miles west of Hurley, Iron county, Wis., early in July, 1911. He was injured on the 28th day of July, 1911, by jumping or falling from a hand car on which he was riding to work. The section crew consisted of nine persons, viz., the foreman, four adults, and four boys between 17 and 18 years of age. About seven miles of track was taken care of by this crew, of which about half consisted of a spur track running east from Hoyt to the Montreal mine; the same being used for hauling iron ore from the mines to the main track, and supplies from the main track to the mines. On the morning in question the crew started on a hand car from the station of Hoyt, and went east toward the Montreal mine, where they were to throw or move one of defendant's switch tracks used for the purpose of loading iron ore toward the stock pile, so that the ore on the stock pile could be more conveniently loaded on cars. A train, consisting of an engine pushing three or four cars, had preceded the hand car from Hoyt to the mine, and the section foreman knew of the train ahead of them, but did not know at what time it left Hoyt, or how far ahead of them the train was. The nine members of the section crew had propelled the hand car from the station of Hoyt up the grade where it passed over the Northwestern Railroad track on a bridge, and then there was a descending grade for about 1,700 feet, then a level grade about 500 feet, then again ascending, something like 2,000 feet, to the mine. A few hundred feet from the foot of this last ascending grade there was a side track leading to the barn, about 700 feet. The switch, to go from the main track on this side track, was located at the west end of the side track. After the hand car had crossed over the Northwestern track, on the bridge, and had proceeded about halfway down the grade, the foreman and the other men on the car discovered that the train was stalled on the barn track, about 500 feet east of the barn switch. The engine started back, and the foreman ordered Andrew Gutt, who was in charge of the brake, “Put on the brake.” Up to the time the car passed over the bridge over the Northwestern Railroad three of the boys, including the plaintiff, stood on the forward part of the car with their backs to the front, and were helping to pump the car; the Gutt boy was at the side of the car in charge of the foot brake, and the foreman and the four men were standing on the rear of the car facing the direction in which the car was moving; after starting down the grade the boys on the front part of the car turned around and faced forward; they then took hold of the tool handles, which are small pieces of iron fastened to each side of the central shaft or framework of the car, to which the pump handles are fastened; the handles themselves working up and down without assistance. When the order to apply the brake was given there was evidently some excitement among the three boys in front, who turned around and attempted to take hold of the pump handle again in order to help stop the car and avoid collision with the engine. In some way the plaintiff fell off the car (the defendant claims he jumped off in order to try and stop the car from the ground), and was seriously and permanently injured. The car was stopped after running some 60 feet further.

A special verdict was returned by the jury, as follows:

“1. Was the defendant, or any officer, agent, servant or employé thereof, other than the plaintiff, guilty of any want of ordinary care that directly contributed to plaintiff's injury in either of the following particulars:

(a) As to furnishing to plaintiff a reasonably safe place in which to perform his work, while assisting in the operation of the hand car at the time of the accident? Answer: Yes.

(b) In the management and operation of the hand car at the time of the accident? Answer: Yes.

2. Was the plaintiff guilty of any want of ordinary care that directly contributed to his injury? Answer: No.

3. If in answer to question 1 you find that the defendant, or any officer, agent, servant, or employé thereof other than the plaintiff, was guilty of want of ordinary care that directly contributed to plaintiff's injury, and if in answer to question 2 you find that the plaintiff was guilty of want of ordinary care that directly contributed to his injury, then answer this: Was such want of ordinary care on plaintiff's part slighter or greater as a contributing cause to such injury than such want of ordinary care on the part of the defendant, or any officer, agent, servant, or employé thereof other than plaintiff? Answer: ______.

4. What amount of money will reasonably compensate the plaintiff for his injuries? Answer: $9,000.00.”

Judgment for the plaintiff having been rendered on this verdict, the defendant appeals.

W. A. Hayes, of Milwaukee, and Luse, Powell & Luse and L. K. Luse, all of Superior, for appellant.

W. P. Crawford, of Superior (John R. Heino, of Duluth, Minn., of counsel), for respondent.

WINSLOW, C. J. (after stating the facts as above).

[1] At the threshold of this case we are met with the objection that the plaintiff was employed in interstate commerce when injured, and hence that the case is governed by the federal statute regulating actions for injuries suffered by employés of interstate carriers. This objection was not made in the trial court, nor was it made in the briefs filed in this court upon the appeal, but was first raised upon the oral argument. The question is important and far-reaching. It is not in the strict sense a jurisdictional question because the court has power to try the case whichever law be applicable. If a defendant can carry its case through the trial court without raising the question of the application of the federal law, and, when defeated, come to this court and for the first time raise the question successfully, it possesses a very valuable advantage. It can experiment through both courts with one law and, if defeated, commence over again under the other law, thus securing two trials, even though the first trial be without objection or exception. Such a conclusion should not be reached unless it is inevitable. Every instinct of fairness and justice cry out against it. It is a question also which seems likely to occur with more or less frequency so long as the two laws exist side by side with varying and contradictory provisions on essential matters. The line which divides employment in interstate commerce from employment in intrastate commerce is at times very shadowy and difficult to draw. If the question may lie dormant in the trial court and be raised for the first time in the court of last resort, it is very certain that many a case fairly tried under the terms of one law, and in which every right secured to the parties by that law has been carefully safeguarded, will have to be reversed and a new trial awarded because of an objection never brought to the attention of the trial court. There is a well-established legal principle which forbids this result, and that is the principle of consent or waiver. This principle has been frequently applied in cases where it is claimed in the appellate court for the first time that a law, under which a recovery has been had in the trial court, is unconstitutional.

It is correctly said by Mr. Cooley in his work on Constitutional...