Raether v. Filer & Stowell Mfg. Co.
| Decision Date | 18 November 1913 |
| Citation | 143 N.W. 1035,155 Wis. 130 |
| Parties | RAETHER v. FILER & STOWELL MFG. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.
Action by Augusta Raether, as administratrix of Edward Raether, deceased, against the Filer & Stowell Manufacturing Company. From an order granting a new trial after a verdict in her favor, plaintiff appeals. From so much of such order as denied its motion to change certain answers in the special verdict and for judgment, and from an order denying a motion to modify the first order, defendant appeals. Order granting a new trial affirmed on plaintiff's appeal, and defendant's appeals dismissed.
This is an action to recover damages for the death of Edward Raether, the plaintiff's intestate and an employé of the defendant company, who was killed February 8, 1907, while engaged in switching in the railroad yard maintained by defendant in connection with its factory in Milwaukee. It was claimed that the defendant was negligent in various ways, the most important of which were negligence in employing one Schultz as superintendent of the yards and in not furnishing a safe place to work. The action has been tried twice. On the first trial, before Judge Ludwig in May, 1910, a special verdict favorable to the plaintiff was rendered, but the same was set aside because in the opinion of the trial judge the testimony of Schultz was incredible and untrue, and findings based on such evidence ought not to be permitted to stand. A second trial was had before Judge Turner and a jury, and the following special verdict rendered: “(1) What was the open space between the platform of the derrick car at the point where the stirrup step upon which the deceased stood, was attached, and the east side of the gondola car at the north end thereof, when the derrick car passed the gondola? State it in inches. Answer: Sixteen inches. (2) Was the open space between said derrick car and the gondola at the place indicated in question 1 so narrow that a person who was exercising ordinary care, when riding on the derrick car, standing on said stirrup step, was liable to come in contact with the gondola when the derrick car passed it? Answer: Yes. (3) Was the deceased directed by the general foreman, Thomas O'Neill, previous to the accident, to stand on the derrick car platform or the engine steps, but not to stand upon a stirrup step when engaged in such work as Raether was doing at the time of the accident, while the derrick car was moving? Answer: No. (4) Was Raether, before the accident, directed by Schultz, the yard foreman, to stand on the stirrup step on the west side of the derrick car while the same was moving and to fix his attention on the hook or any part of the apparatus for carrying ashes? Answer: Yes. (5) If you answer question 2, ‘Yes,’ then answer: Did the defendant fail to exercise ordinary care by so placing said gondola car on track six at the place where it was standing at the time of the accident? Answer: Yes. (6) If you answer question 5 ‘Yes,’ then answer: Was such failure to exercise such care a proximate cause of the injury to Raether? Answer: Yes. (7) Was the foreman, Schultz, incompetent to perform his duties prior to the accident because of habitual intoxication? Answer: Yes. (8) If you answer question 7, ‘Yes,’ then answer: Did the defendant know before the accident that Schultz was incompetent to perform the duties with which he was charged? Answer: Yes. (9) If you answer question 7, ‘Yes,’ and question 8, ‘No,’ then answer: Ought the defendant in the exercise of ordinary care to have known before the accident that Schultz was incompetent to perform the duties with which he was charged? Answer: (No answer.) (10) If you answer question 7, ‘Yes,’ then answer: Was such incompetency the proximate cause of the injury to the plaintiff? Answer: Yes. (11) Ought Raether in the exercise of ordinary care to have reasonably apprehended that while riding on the step of the derrick car when passing the gondola that he was...
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McLaughlin v. Chicago, M., St. P. & P. Ry. Co.
...585, 595, 126 N.W.2d 503.3 Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 332, 88 N.W.2d 672.4 Raether v. Filer & Stowell Mfg. Co. (1913), 155 Wis. 130, 134, 143 N.W. 1035; Asen v. Jos. Schlitz Brewing Co. (1960), 11 Wis.2d 594, 106 N.W.2d 269.5 See Gustafson v. Bertschinger (1961),......
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Rusch v. Sentinel-News Co.
...granting a new trial. In such case the order must be affirmed.” [1][2] In support of the language just quoted Raether v. Filer & Stowell Mfg. Co., 155 Wis. 130, 143 N. W. 1035, was cited. The language recited did not then, and does not now, correctly state the rule which guides this court o......
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Asen v. Jos. Schlitz Brewing Co.
...The defendants appear to have appealed only from the portions of the order which are not appealable. See Raether v. Filer & Stowell Mfg. Co., 1913, 155 Wis. 130, 134, 143 N.W. 1035. The plaintiff requested a review of the portion of the order granting a new trial, but since no appeal had be......
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Edwards v. Milwaukee Elec. Ry. & Light Co.
...discretion on the part of the circuit court in granting a new trial. In such case the order must be affirmed. Raether v. Filer & Stowell Mfg. Co., 155 Wis. 130, 143 N. W. 1035. As there must be a new trial, we purposely forbear to comment upon the testimony causing the setting aside of the ......