McCadden v. Abbot

• Decision Date: 10 March 1896
• Citation: 92 Wis. 551,66 N.W. 694
• Parties: MCCADDEN v. ABBOT ET AL.
• Court: Wisconsin Supreme Court

92 Wis. 551

66 N.W. 694

MCCADDEN

v.ABBOT ET AL.

Supreme Court of Wisconsin.

March 10, 1896.

Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.

Action for damages for death of plaintiff's intestate, brought by Elizabeth McCadden, administratrix of the estate of Anthony McCadden, deceased, against E. H. Abbot and J. A. Stewart, trustees in possession and operating the Wisconsin Central Railroad. There was judgment for defendants, and plaintiff appealed. Affirmed.

This is an action to recover damages for the death of plaintiff's intestate, caused by alleged negligence on the part of a locomotive engineer in the employ of the defendants. The deceased, Anthony D. McCadden, and his brother, James McCadden, were engaged in operating switch engine No. 13 for defendants, in the railway yards at Stevens Point, Wis.; the former being the fireman, and the latter the engineer. The yard was about 5,700 feet long, and was crossed, near the center, at right angles, by a public street 80 feet wide, called “Michigan Avenue.” East of this avenue, about 75 feet, was the east end of a coal shed, which extended along one of the railway tracks, which may be called the “Coal-Shed Track,” for a distance of 500 feet. In the center of the shed, towards the track, was a coal chute, and at this chute, on the occasion in question, switch engine No. 49 was taking coal. Engine No. 13 was on the main track, near the center of Michigan avenue, and about 335 feet east of engine No. 49. When engine No. 13 was so located, the deceased saw engine No. 49 at the coal chute. Both engines were headed toward the east. Engine No. 13, about the time deceased looked west, and observed engine 49 at the coal chute, commenced moving towards the west; and, after proceeding about 73 feet, the deceased, without looking again towards engine 49, stepped off of his engine to go to dinner, then proceeded about 17 feet, in a northeasterly direction, on his way to dinner, and stepped on to the coal-shed track, when he was instantly struck by engine 49, as it was backing up, at a speed of 15 miles an hour, and was killed. From the time he saw engine 49 at the coal chute till he stepped on the track and was killed, he traveled on engine 13 75 feet, and walked 17 feet. Had he looked in the direction of the coal chute before stepping upon the track, he would have seen the engine coming towards him, and prevented the injury. He had been, prior to his death, working in defendants' yards for a considerable length of time, and knew the manner in which the work was there carried on. The jury found, specially, that during such period it was the uniform custom to run the switch engines from 1 to 18 miles an hour in the yard west of Michigan avenue, and to run not faster than 6 miles per hour from the coal chute to Michigan avenue, which custom was known to the deceased; that he had no reason to expect that engine 49 would run faster than 6 miles an hour from the coal chute to the avenue; that it was running 15 miles per hour west of the avenue at the time he was killed. The jury also found, specially, as follows: “Twelfth question. Did the deceased, just about the time engine 13 stopped and commenced to move west, and before he started to leave the engine to go to dinner, look west, and see engine 49 standing at the coal chute? Answer. Yes. Thirteenth question. If you answer the last question ‘Yes,’ did ordinary care require him to look again before attempting to cross the coal-shed track? Answer. No.” The jury further found that the engine bell on engine 49 was not rung as the engine backed over the avenue; that deceased was not guilty of any want of ordinary care which contributed to...