Phipps v. Wis. Cent. Ry. Co.
| Decision Date | 08 January 1907 |
| Citation | 110 N.W. 207,130 Wis. 279 |
| Parties | PHIPPS v. WISCONSIN CENT. RY. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.
Action by Katherine Phipps, administratrix of Charles Phipps, against the Wisconsin Central Railway Company. From an order in proceedings for the examination of officers of the defendant company as adverse witnesses, defendant appeals. Dismissed.Thos H. Gill and Walter D. Corrigan, for appellant.
Timlin & Glicksman and W. L. Gold, for respondent.
This is an action to recover damages on account of the death of Chas. Phipps, deceased, plaintiff's husband, who was a locomotive engineer in defendant's employ, and is alleged to have been killed by reason of the negligent and insecure construction of the railroad bridge on defendant's road, through which his engine was precipitated. The defendant's answer denied all negligence. After issue was joined the plaintiff gave notice of taking the depositions of Charles M. Morris, the secretary, and of Thomas H. Gill, the general attorney, of the defendant company, as adverse witnesses, under the provisions of section 4096, Rev. St. 1898, and its amendments. The attendance of the witnesses before the commissioner was compelled by a subpœna, which also required the production on the hearing of the plans of the bridge in question, as well as all telegrams or orders sent by the company to the conductor of the train which met the accident, as well as all other writings, telegrams, or statements in possession of the company relating to the inspection of the bridge, the cause of the disaster, or the matters set forth in the complaint. The witnesses declined to produce the plans and statements so desired, notwithstanding they were directed so to do by the commissioner, and the proceedings were thereupon certified to the circuit court, and upon motion that court made an order commanding the witnesses to produce the plans of the bridge, the telegrams or orders sent to the conductor or train crew, and the names of defendant's employés who possessed any knowledge of the accident. From this order the defendant appealed, and the plaintiff now moves to dismiss the appeal.
Appealable orders are classified and defined by section 3069, Rev. St. 1898. Reference to that section demonstrates at once that if the order before us is appealable it must be because it is (1) a final order affecting a substantial right made in special...
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Karel v. Conlan
...stating the facts as above). [1] The appealability of the order is challenged by the respondent, and the cases of Phipps v. Wisconsin Cent. Ry. Co., 130 Wis. 279, 110 N. W. 207, and Neacy v. Thomas, 148 Wis. 91, 133 N. W. 580, are relied upon to sustain the challenge. In the former case it ......
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Phipps v. Wis. Cent. Ry. Co.
...stating the facts as above). 1. It is insisted that the orders are not appealable under the rule laid down in Phipps v. Wisconsin C. R. Co., 130 Wis. 279, 110 N. W. 207. But it will be seen that on the former appeal the order appealed from was “merely an interlocutory order regulating the m......
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Milwaukee Corrugating Co. v. Flagge
...been said that an adverse examination under section 4096 is both a provisional remedy and a special proceeding. Phipps v. Wis. Cent. R. R. Co., 130 Wis. 279, 110 N. W. 207;Karel v. Conlan, 155 Wis. 221, 144 N. W. 266. We are now satisfied that this holding is illogical and erroneous and sho......
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Am. Food Prods. Co. v. Winter
...48 N. W. 257;Shabenaw v. Thompson & W. Co., 80 Wis. 621, 50 N. W. 781;Bragg v. Blewett, 99 Wis. 355, 74 N. W. 807;Phipps v. Wisconsin C. R. Co., 130 Wis. 279, 110 N. W. 207. The court below refused to quash the service on defendant corporations and the subpœna duces tecum, and of this the a......