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

• Decision Date: 01 December 1885
• Citation: 64 Wis. 475,25 N.W. 544
• Parties: PHILLIPS, ADM'R, ETC., v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

64 Wis. 475

25 N.W. 544

PHILLIPS, ADM'R, ETC.,

v.CHICAGO, M. & ST. P. RY. CO.¹

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Fond du Lac county.

By agreement the trains of the Wisconsin Central Railway Company had the privilege of running upon and over the defendant's line of road between Milwaukee and Schwartzburg, a distance of about nine miles. Such trains were to run “on such times, running orders, and regulations as might from time to time be fixed and prescribed” by the general manager of the defendant, and be under the exclusive jurisdiction and control of the defendant. West Milwaukee station is on that line, and two miles west from Milwaukee depot. Summit Side Track is on that line, and two miles west of that, or four miles out from Milwaukee depot; and Schwartzburg is about five miles west from Summit Side Track. Going west from West Milwaukee to Summit Side Track there is a heavy up-grade. On the morning of February 28, 1882, the defendant's regular freight train No. 11 started from Milwaukee depot on the regular time, 5:45 A. M., and reached West Milwaukee on the regular time at 6 A. M.; but in going from there to Summit Side Track it was obliged to cut the train in two and mount the grade by taking a part of the train at a time. The defendant's regular mixed train No. 3 started from Milwaukee depot on the regular time, 6:45 A. M., and reached West Milwaukee on the regular time at 7 A. M.; but on approaching No. 11 on the track it was signaled by the latter, and its engine assisted that train up the grade and then took its own train up to Summit Side Track, so that before and at 7:32 A. M. No. 11 was on the main track at Summit Side Track; and at the same time No. 3 was on the side track at Summit Side Track. On that same morning the conductor and engineer of the Wisconsin Central freight train in question received orders from the defendant's train dispatcher to leave Milwaukee with that freight train at or after 7 A. M., “and run wild from Milwaukee to Schwartzburg, keeping clear of regular trains.” In obedience to such orders the Central train in question left Milwaukee at 7 A. M. and reached West Milwaukee at 7:15 A. M., when it stopped to take orders and registered, and then started on towards Summit Side Track at 7:16 A. M., and reached the latter place at 7:32 A. M. The morning was cold, and so foggy that the engineer of that train could see no more than 10 or 15 feet ahead of his engine. At that point the Central train ran into the rear end of No. 11 there upon the main track. When the collision occurred Richard McBride, the head brakeman on the Central train, was standing in the gangway between the tender and engine, and was killed by the collision. None of the Central cars were thrown from the track. The plaintiff brings this action to recover damages by reason of the intestate's death. On the trial there was a verdict for the plaintiff, and from the judgment entered thereon the defendant brings this appeal.Gabe Bouck, for respondent, Tyler D. Phillips, Adm'r, etc.

John W. Cary and Burton Hanson, for appellant, Chicago, M. & St. P. Ry. Co.

CASSODAY, J.

The action could only be brought by and in the name of the personal representative of the deceased. Section 4256. The answer denied the appointment of the plaintiff as administrator. There was no error in admitting in evidence the letters of administration issued to the plaintiff. There was no error in allowing the plaintiff to prove the exact condition of things at Summit Side Track; that there was no depot, no depot grounds, nor any person stationed there; that there was only the main track, side track, and switches at each end. The time-table in evidence showed it to be a “signal station.” These facts were undisputed, and the error assigned because the court repeated them to the jury is without foundation. The addition of the remark that “the only person who could give signals at that point would be men connected with trains stopping at that point” was an inevitable conclusion from the uncontroverted facts, and hence was no error. Upon the evidence stated, who else would be there to give such signals? In the absence of all trains at Summit Side Track, there would necessarily be an absence of all signals at that place, unless given by persons not connected with either company. This being so, the absence of any signal at that place, especially on a morning like the one in question, would naturally induce the inference that no train was there. There would be no propriety in calling it a “signal station,” if every train was required to stop there in the absence of any signal. The question whether the conductor, engineer, or servants on board the Wisconsin Central train were negligent in running or managing that train, under the facts and circumstances disclosed in the evidence, was submitted to the jury, with direction to find for the defendant if any of them were negligent. The verdict for the plaintiff was a finding that none of them were negligent. Exception is taken because the court instructed the jury in effect that “while the servants in charge of the Central train * * * were running at that time under special orders, yet the servants on that train were bound to observe the rules of the defendant * * * so far as they did not conflict with the special orders which they had” received.

The “special orders” were to “run wild from Milwaukee to Schwartzburg, keeping clear of regular trains.” Of course, a wild train under special orders was bound to obey such orders. The very object of giving special orders may be to relieve those in charge of a particular train from being governed by one or more of the general rules. The “movement of trains by telegraph” necessitates special orders by telegraph. The eight printed rules under that head all relate to such special orders. Thus, “When a train has orders to run regardless of a specified train, it gives the train under such orders no right over another train.” So, “No train shall assume the rights or take the time of any other train without special orders.” That is to say, as the court in this case, in effect, did say, a train under special orders is bound to observe the general rules, except in so far as they conflict with such special orders. The instruction referred to was not misleading. For the same reasons, it was not error to instruct the jury, in effect, that “it was the duty of the engineer and conductor * * *” of the Central train “to be on the lookout for signals” on approaching Summit Side Track, “so that they might avoid a collision at that place if there was a train upon the track.” For the same reasons, it was not error to instruct the jury, in effect, that “it was the duty of the men in the charge of the * * * Central train to observe the rules of the defendant, * * * and * * * to look out for regular trains which might be upon the road.” Such, in effect, were the special orders in question.

But what is to be deemed a “regular train?” Freight train No. 11 was due at Schwartzburg half an hour before the Central train left Milwaukee, and three-quarters of an hour before it left West Milwaukee; and yet no reference was made in the special orders to the fact of that train being behind time; but, on the contrary, the orders were to run wild to Schwartzburg, which indicated that the road was clear to that point so far as No. 11 was concerned. Was that to be regarded as a regular train after it ceased to run on regular time? When struck, it was an hour and 17 minutes behind time. Should not the men in charge of the Central train have been notified of the fact that No. 11 was behind time? True, mixed train No. 3 was not due at Schwartzburg until four minutes after the Central train had left West Milwaukee, but had it been on time it would then have been some three miles west of Summit Side Track. Its time was faster than No. 11, and faster than the speed of the Central train. But still it was liable to get behind time, and there had been no opportunity for notifying the men in charge of the Central train that it was behind time at Schwartzburg, and so they were bound to be on the lookout for signals from that train, as the jury were instructed by the court.

The engineer of the Central train testified, in effect, that he went from West Milwaukee up to the Summit, using the caution of whistling around every curve, as well as crossing; that in coming to the Summit he had all but shut off his engine, and as the fog was so dense he had his head out of the the window, and kept his eye peeled for anything that might happen; that he saw a dark object, as it was, in the fog, and sang out, “Jump, for Christ's sake!” but almost as soon as he got the words out the collision occurred; that when he saw the dark spot, he reversed the engine, plugged her, and squealed for brakes,...