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

• Decision Date: 07 February 1922
• Citation: 176 Wis. 188,186 N.W. 616
• Court: Wisconsin Supreme Court
• Parties: RICHTER v. CHICAGO, M. & ST. P. RY. CO.

176 Wis. 188

186 N.W. 616

RICHTER

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

Supreme Court of Wisconsin.

Feb. 7, 1922.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Action by Theodore Richter, as administrator of the estate of Kasper Wulz, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss complaint.

The deceased, Kasper Wulz, was employed by defendant as a car repairer, at Corliss, Wis. On the morning of July 24, 1917, he was sent to Truesdell, Wis., to repair two cars which had come from some place in Illinois. He carried with him a crowbar, two jacks, and a pail containing brasses used as bearings in journal boxes.

Having finished repairing the cars, he collected his tools and walked southward from the platform of the station toward a freight train which was slowly approaching from the south. He walked down the center of the same track; then stepped to the west side of the track between it and the track on which a passenger train was coming from the north. When the freight train reached him, he placed his pail upon the engine pilot, and a moment later, walked beside the pilot and attempted to push the pail to a more secure position.

At this point there is a double track. The passenger train was approaching from the north at a speed in excess of 40 miles an hour. Deceased stepped or stumbled upon the other track and was struck by the pilot beam of the approaching engine and killed. The witness who had the best opportunity to see how the accident happened testified as follows:

“I was employed by the Milwaukee Road in July, 1917, and recall an accident happening to one Wulz near Truesdell, Wis. I was employed as a brakeman on a freight train. I was the head brakeman and I was sitting on the front seat on the fireman's side looking out of the window. I saw the accident. I saw the man coming across the track, and he had a crowbar and two jacks on the end of the crowbar, over his back, and a pail; I cannot describe what was in the pail, but, according to the heft of it, there must have been some brasses and waste in it, and he tried to put the pail on the front of the engine, and in doing so he did not get it on quite enough, and as the engine went by him a little ways he turned around and tried to run after it again and put it back on; push it on further, facing towards the front of the engine; and in doing this he kind of got up close to it and stood up straight, and by doing this he tipped the crowbar with the two jacks, on his back, up. The crowbar slipped off. The jacks kind of slipped back on the crowbar and overbalanced him, which balanced him back towards the track which 24 was coming up. I hollered at him, but he couldn't hear me, and it was already then too late. He was too far; it didn't do any good. I was looking directly at him all the time. I never kept my eye off of him from the time I saw him until I went back to look at him. I yelled as loud as I could. The window was open. His feet were at an angle. He had one foot over the rail and one on the other side. That was the time he hit him, leaning this way, facing the passenger train 24.”

It is undisputed that the cars repaired were being used in interstate commerce; that Wulz had completed the actual repairing and was returning to his regular place of employment; and that, as Wulz approached the train, the engineer told the fireman to assist him to board the engine. The engineer saw the approaching passenger train and saw Wulz walking between the rails, and when Wulz disappeared from view (by reason of his stepping between the two tracks), he did not attempt to stop the train until told by the fireman that a man had been struck.

The substance of the jury's findings was as follows: That the engineer of the freight train was negligent in not stopping to allow Wulz to board the engine; that the death was caused by such negligence; that the negligence of Wulz proximately contributed to his death, and was 40 per cent. of all the negligence of Wulz and the engineer; that Wulz assumed the risks incident to going between the tracks; and that the pecuniary loss suffered by his widow was $6,000. The trial court held that Wulz, at the time of his death, was engaged in interstate commerce.

Plaintiff moved for judgment on the verdict for $6,000, for the reason that the evidence showed that deceased was not engaged in interstate commerce at the time of his death, and, in the alternative, if that motion be not granted, to change the answer finding that Wulz had assumed the risks incident to going between the tracks to “No,” and for judgment for $3,600. The latter motion was granted, and judgment was ordered accordingly.

There was no claim of negligence in the management of the passenger train. It was undisputed that when the engineer of the freight train saw the deceased approaching his slowly moving engine, and coming along the center of the track, he blew the whistle, and that the brakeman, who was seated in the fireman's seat, shouted a warning to the deceased. The bell was ringing and the whistle was blowing on the passenger train. When the engineer of the freight train thought that Wulz intended to get on the engine, he told the fireman to help him. It was expected that deceased would try to get on the engine on the east side, where there was no danger of any passing train. Instead of doing so he went on the left side, between the main tracks. It is difficult to locate from the testimony the exact place where the accident happened, and in view of the other testimony it may not be material.

Different inferences were drawn by witnesses concerning a signal given to Wulz. From some of the evidence it might be inferred that a signal was given to board the train, but the engineer testified that it was to give warning of the danger.

H. J. Killilea and Rodger M. Trump, both of Milwaukee, for appellant.

W. C. Seefeld, of Milwaukee, for respondent.

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

It was alleged in the complaint that both Wulz and the defendant were engaged in interstate commerce. But it is now claimed by plaintiff's counsel that the federal act (U. S. Comp. St. §§ 8657-8665), does not apply. The cars on which Wulz worked were engaged in interstate commerce. Although deceased had finished repairing the cars, it was early in the day, and he was on his return to report to the foreman when the accident occurred.

[1] We are convinced that the trial court was right in holding that Wulz was engaged in interstate commerce at the time of the accident. In the trial court, plaintiff relied on Ill. Cent. Ry. Co. v. Peery, 242 U. S. 292, 37 Sup. Ct. 122, 61 L. Ed. 309, where the conductor, on a south-bound trip, where he was injured, was on a train doing interstate business, and on the return trip (south) was on a train engaged in purely intrastate business. The court held that the trips out and back were distinct, in opposite directions, and with different trains, and that the case did not come within the provisions of the federal act.

In the present case the return of Wulz from his work in interstate commerce was but a continuation of the task he had to perform when he started from Corliss, and not completed until he reported back at Corliss for further instructions. It is not necessary that the workman be working upon a car or siding or on a train engaged in interstate commerce when the injury is received, in order to bring him within the provisions of the federal act. If the act performed when the injury occurs is upon an indivisible task connected with interstate commerce, it is sufficient.

The principle is...