Rupert v. Chi., M., St. P. & P. R. Co.

Decision Date14 October 1930
Citation232 N.W. 550,202 Wis. 563
CourtWisconsin Supreme Court
PartiesRUPERT v. CHICAGO, M., ST. P. & P. R. CO.

OPINION TEXT STARTS HERE

Appeal from a judgment of the County Court for Marinette County; William F. Haase, Judge.

Action by Mabel Rupert, as administratrix of the estate of Arba Rupert, deceased, against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Reversed, with directions to dismiss the complaint.

Action commenced December 5, 1929, to recover damages sustained because of the death of Arba Rupert. From a judgment for plaintiff, entered December 27, 1929, upon a special verdict, defendant appealed.

Arba Rupert, while working as a brakeman in defendant's employment in interstate transportation, was fatally injured when he fell from the rear of the platform of a flat car loaded with logs, and which was the last car of a twenty-car train which was being slowly backed in an easterly direction. There is no direct evidence as to how or why he fell. The train was promptly stopped, within six car lengths, and it was then found that the easterly end of an angle iron bar thirty-eight inches long, and known as a brake beam safety hanger, had dropped down so that it was sticking in the cinders and snow between the ties. When in proper place, the bar is fastened by two bolts, five-sixths of an inch in diameter, which are ten inches apart, and each of which is fourteen inches from its nearest end of the bar, to the spring plank underneath the car, in such manner that it extends parallel to the rails, underneath the brake beam, to within thirty inches of the nearest end of the platform of the car. There were two such bars underneath each brake beam. Each was fastened five inches inside of the nearest wheels and twenty-four inches to the side of the middle of the car, and so that it was twenty-four inches below the lower edge of the platform, and ten inches above the ties. After the accident, one end of the bar, of which the other end was sticking in the ground, was still fastened to the spring plank by the bolt which was nearest to the upper end of the bar. That bolt was still held in place by a nut and lock nut, but the other bolt was missing, and neither it nor the nuts could be found after the accident. The bar had become bent or kinked.

After the accident, Rupert's body was found under the fifth car from the one on which he had been standing. It was lying between the rails, with his right leg down between the second and third ties of the trestle, counting from its east end. His left leg extended over the north rail, and was severed at the ankle. His body was ripped open from the navel down through the crotch.

Such additional facts as are necessary to an understanding of the questions which are decisive on this appeal will be stated in the opinion.Bender, Trump, McIntyre & Freeman, of Milwaukee, and Martineau & Martineau, of Marinette, for appellant.

V. J. O'Kelliher, of Oconto, and Francis A. Murphy, of Marinette, for respondent.

FRITZ, J.

[1] As Rupert was injured while engaged in interstate transportation and the case comes within the Federal Employers' Liability Act (45 USCA §§ 51-59), to entitle the plaintiff to recover, under the present federal statutes and decisions, she must establish that there was negligence on the part of the defendant which, in whole or in part, caused Rupert's injuries. New Orleans, etc., Ry. v. Harris, 247 U. S. 367, 38 S. Ct. 535, 62 L. Ed. 1167;Richter v. C., M. & St. P. Ry. Co., 176 Wis. 188, 186 N. W. 616.

It is undisputed that the space between the rails and underneath the rear end platform of the car, upon which Rupert had been standing, was so limited that serious injury to a man of his stature and weight was inevitable, upon his body entering that space while the train continued in motion. Once down, injury was an inevitable consequence, so that whatever was the proximate cause of his fall was also the proximate cause of his injury. Hence, at the outset, there arises the question: What caused Rupert to fall? There is no evidence of any negligence on the part of the train crew in the movement of the train.

The jury found that the brake beam safety hanger was defective or insufficient; that such defective or insufficient condition caused in whole or in part the injuries and death of Rupert; and that he did not assume the risk of his injury, and was not guilty of contributory negligence.

[2] There is no direct evidence in support of those findings. Rupert's injuries were such that he was unable to speak and tell how or why he fell. No witness was produced who actually saw him fall, or who knows of his own knowledge what caused him to fall. However, we have concluded that those findings can be sustained by indulging in the most favorable inferences that some of the credible circumstantial evidence admits of, and by giving the plaintiff the greatest possible benefit of the rule that if there is any credible evidence, which under any reasonable view will support or admit of an inference for or against the claim or contention of any party, then what is the proper inference to be drawn therefrom is for the jury, and the court should not assume to answer such questions by substituting another answer after the verdict is...

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13 cases
  • Radler v. St. Louis-San Francisco Ry. Co.
    • United States
    • Missouri Supreme Court
    • June 10, 1932
    ...by reason of defective appliances. Defendant cites one case in support of this rule. [Rupert v. C. M. & St. P. Ry., 232 N.W. 550.] The Rupert case not an authority supporting appellant's contention, since the suit in that case was not brought under the Safety Appliance Provision of the Fede......
  • Radler v. St. Louis-San Francisco Ry. Co.
    • United States
    • Missouri Supreme Court
    • July 1, 1932
    ...insufficient in that there was no evidence of the negligent failure to inspect for and discover any defect in the brake. Rupert v. C.M. & St. P. Ry., 232 N.W. 550 (cert. denied by the Sup. Ct. of the U.S., 51 Sup. Ct. Rep. 488). (2) The court erred in excluding evidence offered by defendant......
  • Groh v. W. O. Krahn, Inc.
    • United States
    • Wisconsin Supreme Court
    • February 9, 1937
    ...should not assume to answer such questions by substituting another answer after the verdict is returned” (Rupert v. Chicago, M., St. P. & P. R. Co., 202 Wis. 563, 232 N.W. 550, 552).’ Borg v. Downing (Wis.) 266 N.W. 182, 183;Trautmann v. Charles Schefft & Sons Co., 201 Wis. 113, 115, 116, 2......
  • Schiefelbein v. Chi., M., St. P. & P. R. Co.
    • United States
    • Wisconsin Supreme Court
    • February 4, 1936
    ...61 L.Ed. 1057, Ann.Cas.1918B, 662;New Orleans, etc., R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167;Rupert v. Chicago M. & St. P. R. Co., 202 Wis. 563, 232 N.W. 550; that no presumption of negligence should be indulged because of the fact that an accident has occurred, Patton v......
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