MacCarthy v. Whitcomb

• Decision Date: 09 April 1901
• Citation: 110 Wis. 113,85 N.W. 707
• Parties: MACCARTHY v. WHITCOMB ET AL.
• Court: Wisconsin Supreme Court

110 Wis. 113

85 N.W. 707

MACCARTHY

v.WHITCOMB ET AL.

Supreme Court of Wisconsin.

April 9, 1901.

Appeal from circuit court, Waukesha county; J. J. Dick, Judge.

Action by George R. MacCarthy against H. F. Whitcomb and others, as receivers of the Wisconsin Central Railroad, for an injury received by plaintiff while in the employ of such railroad. From a judgment in favor of plaintiff, defendants appeal. Judgment reversed on condition.Howard Morris and Thos. H. Gill, for appellants.

D. J. Hemlock (W. J. Strong, of counsel), for respondent.

CASSODAY, C. J.

This action was brought to recover damages for personal injuries sustained by the plaintiff on the morning of January 31, 1898, while engaged as a fireman on one of the defendants' locomotives moving a north-bound freight train, at Grayslake station, in Illinois. The circumstances under which the accident occurred are to the effect that about 8 o'clock on the evening of January 30, 1898, engine 82, upon which the plaintiff was fireman and P. D. Walsh was engineer, left Chicago, north bound, drawing freight train No. 21, in charge of Conductor Ray and Brakemen Jim McCarthy and Jim Gillis; that the night was stormy, snowing and blowing, and the train proceeded northerly to a point known as “Hendee's Crossing,” about three miles south of Grayslake station, where the train became stalled, and was unable to proceed further north, by reason of the snow; that Conductor Ray and Brakeman Gillis cut off engine No. 82 from the train, and, with the engineer and fireman, proceeded to the depot at Grayslake, where they arrived some time after 1 o'clock in the morning of January 31, 1898; that that was not a night station, and Conductor Ray went to the agent's residence, called him up, and returned with him to the station, after which the engineer, Brakeman Gillis, the conductor, and the agent went into the depot, and the agent opened communication with the train dispatcher's office at Waukesha, some 50 miles distant, as directed by the conductor, to get relief for the stalled train; that after some delay Conductor Ray was advised by the train dispatcher at Waukesha that there was a sound-bound freight train then at Lake Villa, the station next northerly from Grayslake; that, after some discussion as to details with the dispatcher, it was arranged that the extra south-bound freight train, which was drawn by two engines (Nos. 104 and 106), with Conductor Emmons in charge, would proceed to Grayslake, and an order was given to that effect; that, pursuant to the orders given when the south-bound extra train reached Grayslake, the two engines attached to it were cut off, and proceeded southerly beyond the south end of the passing track at Grayslake; that Walsh then returned to his engine No. 82, with the plaintiff and the brakeman, and proceeded southerly of the same switch, and then ran northerly on the side track far enough to allow a clear passage on the main line; that, after the two engines of the extra south-bound train went south of the south passing switch, engine No. 82 backed out and coupled its tender to the rear or tender of the northerly engine of the south-bound freight train, so that the two extra engines were headed south, and Walsh's engine was headed to the north, in order to have an engine pilot in advance in whichever direction they moved; that the three engines thus coupled proceeded southerly to the stalled freight train, coupled to that train, and returned with it to Grayslake; that at that time Engineer Walsh, with engine No. 82, which was the head engine, controlled the air brake which extended from his engine through the other two engines, and to the freight cars thus equipped in the train, so that, approaching Grayslake, Walsh had entire control of the brakes on the train, and entire control of the movements, communicating his signals by whistles to the other engineers and the train crew; that as they approached the station Engineer Walsh turned on the air brakes, and, after sounding the station whistle, Walsh, being the head engineer, sounded a whistle for off-brakes, and proceeded to work steam, increasing the speed of the train as they reached the south switch; that Walsh proceeded north on the main track until his engine collided with the south-bound freight train, which had been left standing at the north end of the platform without any red light at the south end thereof by Conductor Emmons, of that train, and the plaintiff was injured before he could escape from the engine. Issue being joined and trial had, the jury returned a special verdict to the effect (1) that the plaintiff was injured January 31, 1898, at the time and place claimed by him, by an accident occurring by reason of a locomotive of the defendants striking a train of the defendants; (2) that the employé of the defendants engaged in operating the locomotive No. 82 was a fellow servant of the plaintiff; (3) that the employés of the defendants engaged in operating the train of the defendants which was struck by the locomotive were fellow servantsof the plaintiff at the time of the accident; (4) that the plaintiff at the time of the accident did not know that there was a train standing on the track at Grayslake; (5) that there was no red light on the south end of the south-bound train at the time of the accident; (6) that the conductor and brakeman in charge of the south-bound train were not fellow servants of the plaintiff at the time they failed to put such light on the south end of such train; (7) that it was a want of ordinary care on the part of the defendants' employés in charge of the south-bound train to leave said train standing on the main track without such light; (8) that the failure to put such red light on the south end of the south-bound train did contribute to the injury suffered by the plaintiff; (9) that the absence of such light was the proximate cause of the plaintiff's injury; (10) that Engineer Walsh did not know that the south-bound train was standing on the main track in time to have prevented the collision by the exercise of ordinary care; (11) that the plaintiff did not know that the train was standing on the main track in time to have prevented the collision by the exercise of ordinary care; (12) that, if a red light had been on the south end of the south-bound train, the plaintiff could have seen the same in time to have jumped from his engine before it struck said train; (13) that Conductor Emmons in failing to put such light on the south end of the south-bound train did violate the rules of the defendants; (14) that the defendants' employés were guilty of negligence which was the natural and probable cause of the accident by which the plaintiff was injured, and which accident, in the light of the attending circumstances, ought reasonably to have been foreseen by a person of ordinary intelligence, care, and prudence; (15) that the plaintiff was not guilty of any want of ordinary care and prudence which contributed directly to produce the injury complained of; (15 1/2) that Engineer Walsh was not guilty of any want of ordinary care and prudence which contributed directly to produce the injury to the plaintiff; (16) that, if the plaintiff is entitled to recover in this action, they assessed his damages at $7,500. From the judgment entered thereon in favor of the plaintiff for that amount, with costs, the defendants bring this appeal.

It is contended on the part of the defendants that, before leaving the depot at Grayslake, it was understood and agreed by both conductors and Walsh, the engineer of the plaintiff's engine, that the south-bound train should be left upon the main track at the north end of the platform while the two engines belonging to that train went south to aid in bringing the stalled train to the south switch at Grayslake; that upon reaching that point Walsh's engine, 82, was to be cut off and put upon the side track, while the other two engines were to be cut off from the stalled train and backed up to the south-bound freight train so standing upon the main track, and coupled to it; and that in the meantime Walsh, with engine 82, was to back down to the stalled train and couple to it, and draw it up onto the side track, so as to allow the south-bound train and the two engines to pass south upon the main track; and that, contrary to such understanding and agreement, Walsh, as engineer of the north-bound train, having full charge of the movements and air brakes on that train, failed to stop at the south switch, as so agreed, but continued north on the main track at a rapid speed until his engine ran into the south-bound train so standing upon the main track; and hence that his negligence was the proximate cause of the plaintiff's injury. By the answer to the tenth question the jury found that Walsh did not know that the south-bound train was standing on the main track in time to have prevented the collision by the exercise of ordinary care, and by their answer to question No. 15 1/2 they found that Walsh was not guilty of any want of ordinary care and prudence which contributed directly to produce the injury to the plaintiff. In respect to the south-bound train being so left upon the...