Muster v. Chi., M. & St. P. Ry. Co.

• Decision Date: 06 November 1884
• Citation: 21 N.W. 223,61 Wis. 325
• Court: Wisconsin Supreme Court
• Parties: MUSTER v. CHICAGO, M. & ST. P. RY. CO.

61 Wis. 325

21 N.W. 223

MUSTER

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

Supreme Court of Wisconsin.

Filed November 6, 1884.

Appeal from circuit court, Jefferson county.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant company. The plaintiff and one Roth were at work for the defendant, putting a cornice on its depot building at Tunnel City, or Greenfield, on its line of railway between Milwaukee and La Crosse. A scaffold had been erected on the south side of the depot--towards the main track--upon which they stood when at work on the cornice. It was agreed on the trial that the scaffold was substantially and safely built. On December 2, 1882, at 8:20 A. M., a passenger train of the defendant, running from Chicago and Milwaukee to La Crosse, designated as train No. 3, ran past the depot at Greenfield at a speed (variously estimated) of from 12 to 30 or 35 miles per hour. A United States mail car in charge of a postal clerk or agent, and from which all the employes of defendant operating the train were excluded by law, constituted a part of the train. The postal car was located between the tender of the locomotive and the first or leading passenger coach, as were also an express car and a baggage car. There were four coaches and three sleepers in the train. The train was behind its schedule time at Greenfield two hours and forty minutes. Greenfield was a flag station, but not a stopping place for train No. 3. As the train passed the depot on that morning, some object, which Roth (the only witness who testified on the subject) thought was a mail-bag, was thrown by some person from one of the cars between the tender and first passenger coach, against one of the upright supports of the scaffold on which plaintiff was at work. It knocked the support from under the scaffold, by means whereof the staging on which the plaintiff stood, and the plaintiff with it, was precipitated to the platform below, whereby the plaintiff received the injuries complained of. For the purpose of receiving the mail at Greenfield, the post-office department has caused to be erected a crane or mail-catcher about 200 feet west of the depot, from which mails were delivered into the postal car on train No. 3 without stopping the train or slackening its speed. The mail-bag for delivery at that point was usually thrown from the car near the mail-catcher. After the testimony was all in, the jury, by direction of the circuit judge, returned a verdict for the defendant. A motion for a new trial was denied, and judgment for the defendant was entered pursuant to the verdict. The plaintiff appeals from the judgment.Harlow Pease, for appellant.

J. W. Cary and D. S. Wegg, for respondent.

LYON, J.

1. The learned counsel for the plaintiff maintained, in his argument, that there is no positive proof that the object thrown from the car was a mail-bag, or that it was thrown from the mail car, or that it was not thrown by one of the employes of the defendant company. From these premises he argued that the case is within the rule of Kirst v. Milwaukee, L. S. & W. Ry. Co. 46 Wis. 489;S. C. 1 N. W. REP. 89; and Cummings v. National Furnace Co. 18 N. W. REP. (Wis.) 742. That rule is thus stated by ERLE, C. J., in Scott v. London Dock Co. 3 Hurl. & C 596: “There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant. that the accident arose from want of care.” The rule is sustained in numerous cases, many of which are cited in the brief of counsel for plaintiff.

The difficulty with the argument is in the premises upon which it is rested. The pleadings and proofs do not leave the cause of the accident in any doubt or uncertainty. The allegations of the complaint are that the defendant “carelessly and negligently discharged, unloaded, and ejected from one of the cars of said train, through an opening in the side of said car a large mail-bag filled with heavy mail, which said mail-bag with its contents was, by the great velocity and momentum of said train, thrown against one of the supports of said scaffold, and thereby said support and a portion of said scaffold, on which the plaintiff was standing, were displaced and knocked down,” etc. Aside from the alleged speed of the train, (which will be hereafter considered,) all of the testimony on the subject is in harmony with these averments. Hence, it is an established fact in the case that the support upon which the staging of the scaffold rested was knocked down by reason of a mail-bag filled with mail matter having been cast against it. It is in testimony and undisputed that such mail-bag was thrown from a car between the tender and first passenger coach through a side door by a person within the car. The mail car had a side door, and was located in the train between the tender and such coach. No person other than the postal clerk or agent had any lawful right to enter such car; no mail matter could lawfully have been in any other car on the train; and no person other than such clerk or agent could lawfully discharge the mail-bag. Such is the law, and the evidence does not tend to show that the law was violated in any of these particulars in discharging the mail from the train when the plaintiff was injured. In absence of such proof it must be presumed that the mail-bag was discharged from the postal car by an employe of the post-office department, and not of the railway company. Such being the presumption, there is no room for the application of the rule above stated.

We do not understand counsel as claiming that the railway company is liable for the negligent act of the postal employe, if it is otherwise free of negligence contributing to the injury of the plaintiff. Such a claim, if made, could not be sustained. The government compels the company to carry the mails, and designates the trains upon which the same shall be carried. It prescribes the kind of cars which shall be...