Reul v. Wis. N. W. Ry. Co.

• Decision Date: 12 June 1917
• Citation: 163 N.W. 189,166 Wis. 128
• Parties: REUL v. WISCONSIN N. W. RY. CO.
• Court: Wisconsin Supreme Court

166 Wis. 128

163 N.W. 189

REUL

v.WISCONSIN N. W. RY. CO.

Supreme Court of Wisconsin.

June 12, 1917.

Appeal from Circuit Court, Marinette County; W. B. Quinlan, Judge.

Action by W. A. Reul, as administrator of Joseph Lucia, deceased, against the Wisconsin Northwestern Railway Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed and remanded.

This is an action by the plaintiff, as administrator of the estate of Joseph Lucia, deceased, to recover damages from the defendant, the Wisconsin Northwestern Railway Company, for the injuries and death of Joseph Lucia, caused by the alleged negligence of the defendant. Joseph Lucia was employed by the defendant as conductor on one of its trains making regular trips from Taylor Rapids to Girard Junction, Wis. The trains were used principally to haul logs from Taylor Rapids to Menominee, Mich. On January 5, 1916, Joseph Lucia, who at the time of the accident was doing a brakeman's work, in making a cut for the purpose of making a “flying switch” or dropping some flat cars, which constituted part of the train, onto a side track, fell from the car, receiving injuries which resulted in his death some hours later. At the close of the testimony, the circuit court awarded judgment, dismissing the plaintiff's complaint on the merits.Martin, Martin & Martin, of Green Bay, and J. C. Morgan, of Wausaukee, for appellant.

Kreutzer, Bird, Okoneski & Puchner, of Wausau, for respondent.

SIEBECKER, J. (after stating the facts as above).

The plaintiff alleged in his complaint that the accident was due to the negligence of the defendant in employing only one brakeman instead of two, thereby compelling Joseph Lucia to perform part of the brakeman's work; that the defendant was negligent in not establishing and publishing certain rules and regulations and seeing that they were observed by members of the train crew; that the engineer was guilty of negligence in failing to exercise reasonable care in operating the locomotive engine for the purpose of making the “flying switch” by omitting the ordinary precautions of avoiding injury to the deceased.

In order to permit Joseph Lucia to make the “flying switch,” he was required to take a position on the side of the box car where he stood upon an iron footrest or stirrup at the bottom of the car and held on with his hands to an iron handhold attached to the side of the car. While in this position, he was obliged to reach around the side of the box car with his left hand, to grasp a lever placed on the flat car coupled to the box car for the purpose of pulling the coupling pin of these two cars, and thus make it possible to make the drop or “flying switch.” The plaintiff claims that, in order to make the “flying switch,” it was the duty of the engineer to slacken the speed of his engine gradually and to “give slack” in order that Joseph Lucia might pull the pin; and that it was also the duty of the engineer not to speed up his engine in its forward movement until Joseph Lucia, by a signal, notified him that he had pulled the pin; and that it was also the duty of the engineer to watch from his cab on the engine the movements of Joseph Lucia, and not to speed up and move his engine forward until he had received such a signal. The plaintiff claims that the engineer carelessly and negligently failed to perform these duties in the ordinary and usual manner, in that, after giving slack, he rapidly moved the engine forward without waiting for a signal from Lucia to do so, and while Lucia was still attempting to pull the coupling pin, and that this careless and sudden moving forward of the engine caused Lucia to lose his balance and fall from the box car, injuring him seriously, which resulted in his death. The defendant alleges that the conduct of the engineer in giving slack and then going forward without signal from Lucia was not different from the ordinary and customary way, that the person about to pull the pin sometimes signals the engineer and sometimes not, and that the engineer on the occasion in question leaned from his cab and tried to see Lucia but could not see him. The defendant also alleges that the engineer's moving of the train ahead without the signal was not the cause of Lucia's fall resulting in his death.

[1] It appears that the train in question was composed of an engine, a tender, a box car, ten flat cars, and a caboose, and was returning to Bird Center for the purpose of reloading, and that the accident occurred near a switch on this return trip where it had been decided to make a “flying switch” for the purpose of...