Schell v. Chi. & N. W. Ry. Co.

• Decision Date: 05 November 1907
• Court: Wisconsin Supreme Court
• Parties: SCHELL v. CHICAGO & N. W. RY. CO.

134 Wis. 142

113 N.W. 657

SCHELL

v.CHICAGO & N. W. RY. CO.^a1

Supreme Court of Wisconsin.

Nov. 5, 1907.

Appeal from Circuit Court, Monroe County; J. J. Fruit, Judge.

Action by John G. Schell, as administrator de bonis non of the estate of Samuel H. Smith, deceased, against the Chicago & Northwestern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The plaintiff, as administrator of the estate of Samuel H. Smith, deceased, brings this action to recover the damages caused to his widow by the alleged wrongful acts of the defendant which are alleged to have caused decedent's death. The complaint alleges that decedent was a resident of this state, and on the 11th day of December, 1903, was in the employ of the defendant company as a watchman at the south entrance to a tunnel on defendant's railroad in Monroe county, and charges that his death was caused by the defendant's train, consisting of two engines and two cabooses, in passing through this tunnel. The specific negligence charged is that defendant omitted to provide proper and reasonably safe couplings on these cars, and that it neglected to use ordinary care in inspecting and keeping these couplings in repair; that the brakes on said cars were not reasonably safe and appropriate for the purposes for which they were used; that defendant failed and neglected to equip this train with brakes which would automatically apply the brakes, whenever the cars became uncoupled, and stop the train and cars, which would in this case have prevented the accident to the decedent; that defendant neglected to furnish a reasonably safe roadbed through such tunnel, and that such defective roadbed caused one of the cabooses to become detached from the train, and that such caboose caused decedent's death; and that the train in question was run at so high and dangerous a rate of speed through this tunnel as to cause the detachment of the caboose. It is also alleged that defendant did not furnish decedent with a reasonably safe place in which to work, and failed to warn and instruct him as to the unusual and extraordinary danger of his employment from detached cars following trains passing his place of employment. Defendant denied being guilty of negligence in any of the respects charged in the complaint.

It appeared that the decedent had been in the employ of the defendant as watchman at the south entrance of this tunnel for some time before the accident; that in the performance of his duties he was required to be stationed on the north side of the track, near the south entrance doors of the tunnel; that this tunnel is about three-quarters of a mile long, and that a watchman is also stationed at the north entrance doors. It is each watchman's duty to give notice to the other of trains about to enter the tunnel, as well as of their exit from the tunnel. When trains approach to pass through the tunnel, the watchman at that end of the tunnel would give notice by electric signals to the watchman at the opposite end, and he was required to respond thereto, and to inform the other whether or not there was a clear track on his side of the tunnel. If clear, the watchman at the end of the tunnel to which the train was approaching would open the doors of the tunnel for the train's passage. After the decedent had opened the...