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

• Decision Date: 04 February 1936
• Parties: SCHIEFELBEIN v. CHICAGO, M., ST. P. & P. R. CO.
• Court: Wisconsin Supreme Court

221 Wis. 35

265 N.W. 386

SCHIEFELBEIN

v.CHICAGO, M., ST. P. & P. R. CO.^a1

Supreme Court of Wisconsin.

Feb. 4, 1936.

Appeal from a judgment of the Circuit Court for Juneau County; S. E. Smalley, Judge.

Action by Paul Schiefelbein, special administrator of the estate of Fred H. Schiefelbein, deceased, against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Affirmed.

In this action, which was commenced on December 12, 1934, the plaintiff, Paul Schiefelbein, as special administrator, seeks to recover from the defendant railroad company for the death of Fred H. Schiefelbein, which resulted from his being crushed between two cars while in the employ of the defendant on December 11, 1932. The action was brought under the Federal Employers' Liability Act and is grounded upon the alleged negligence of one Olson, a fellow servant. Trial was had to the court and a jury. Defendant's motion for a directed verdict was denied. A special verdict was rendered. The jury found, among other things (1) that defendant's employee Olson was negligent with respect to making proper observation and effort to learn the whereabouts of Schiefelbein before signaling the engineer to slack back; (2) that he was not negligent with respect to discovering whether Schiefelbein was between the cars before so signaling; (3) that he was negligent with respect to warning Schiefelbein before so signaling; and (4) that he was negligent with respect to awaiting word from Schiefelbein that he had completed his work between the cars before so signaling; that Olson's negligence with respect to warning Schiefelbein and with respect to awaiting word from Schiefelbein that he had completed his work were causes of Schiefelbein's injuries; that Schiefelbein was not negligent with respect to signaling the fireman that he was about to enter between the cars, with respect to advising Olson that he was going between the cars, and with respect to being between the cars at the time Olson signaled the engineer to slack back. The plaintiff moved for judgment on the verdict as rendered. The defendant made the usual motions for judgment notwithstanding the verdict, to change certain of the jury's answers, and in the alternative for a new trial. The plaintiff's motion for judgment on the verdict was granted, and all of defendant's motions were denied. From a judgment in favor of the plaintiff, entered June 21, 1935, the defendant appealed.Bender, Trump & McIntyre, of Milwaukee, and Frank H. Hanson, of Mauston, for appellant.

Loomis & Roswell, of Mauston (Grady, Farnsworth & Walker, of Portage, of counsel), for respondent.

NELSON, Justice.

Fred H. Schiefelbein, hereafter called the decedent, was employed by the defendant for many years prior to December 11, 1932, the date of his death. He was concededly an efficient and careful employee. For several months prior to December 11, 1932, he had served as a member of a night switching crew in the defendant's yards at New Lisbon. The switching operation which the crew was conducting at the time decedent was fatally injured involved the transferring of four cars from defendant's “valley division” train (No. 156) to its Chicago bound train (No. 56) on the main line. The switching crew consisted of an engineer and fireman of the switch engine, a foreman, a switchman, whose name was Olson, and the decedent. In transferring the cars, the following movements and acts were necessary: The switch engine pulled the four cars from the valley division track to the westbound main line track and there awaited the arrival of train No. 56. The switch engine at that time was headed west. The car next to the switch engine was the Chicago express car. Behind that car were the Milwaukee baggage car and two Pullmans. The three cars last mentioned were to be attached to the rear of train No. 56 and the Chicago express car to the head of it. Train No. 56 arrived about fifteen minutes late. Upon its arrival the switch engine backed the four cars mentioned over a connecting switch track to the eastbound track and along the latter up to the rear of train No. 56. The foreman was stationed on the north side of the cars and at the place where the coupling of the Pullman to the last car of train No. 56 was to be made. It was his duty to attend to that coupling. Olson, the switchman, was also on the north side of the train and took his position at the east end of the Chicago express car and the west end of the Milwaukee baggage car. It was his duty, assisted by the decedent, to uncouple the express car from the baggage car so that the former might be taken to the head of train No. 56. The decedent was on the south side of the cars at the place where the cars were to be cut. Just what duty he was performing at the time he was injured does not clearly appear. Olson was the only witness who testified regarding decedent's movements and position immediately before the accident. The decedent never regained consciousness after the accident, so never was able to make a statement. The express and baggage cars were connected by standard automatic couplers, an air hose, a steam hose, a signal hose, which were parts of the air brake, heating and signaling systems, and by two heavy safety chains which prevented the breaking apart of the train in case the automatic couplers for any reason became uncoupled. The uncoupling operation first required that the air hose be broken. This was accomplished without much difficulty shortly after the foreman up ahead had released the air hose from the Pullmans and the Milwaukee baggage car. The air was released from those cars by Olson's closing the angle cock at the east end of the Chicago express car and by the foreman's opening the angle cock on the front of the Pullman. Olson testified that he himself broke the air hose connection, and at that time the decedent was standing about two feet from the south rail. Just who disconnected the safety chains, the steam hose, or the signal hose on the night in question does not appear. Testimony was adduced tending to show that it was the practice of the decedent and of some of those who had theretofore assisted in the work of uncoupling the two cars to shut the angle cock on the westerly end of the Milwaukee baggage car, although this duty was sometimes performed by the rear brakeman of train No. 56. The next act was to release the automatic couplers. This was effected by Olson's signaling the engineer to slack back so that he might pull or release the pin lock. Olson testified that he signaled the engineer to slack back, that he then pulled the pin, and then signaled the engineer to go ahead; that almost immediately upon the parting of the cars he saw the decedent fall between the rails. Subsequent examination revealed that nearly all of the bones of decedent's head were crushed. The heavy safety chains mentioned were attached to the cars by equally heavy immovable clevises, the ends of which, when the slack between the cars was taken up, were six to eight inches apart and directly opposite each other. The decedent wore a cap at the time he was injured, and it was subsequently discovered that there were well-defined rust marks on each side of his cap which tended to show that his head was crushed between rusty iron objects. No testimony was adduced reasonably tending to show how the decedent's head could have been crushed in any manner other than by the clevises. The photographs and the model afford no other explanation. This statement of facts is, we believe, sufficiently comprehensive to make the issues clear.

It is conceded that the action was properly brought under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59), since the switching crew was performing an act in furtherance of interstate commerce. That statute in part provides: “Every common carrier by railroad * * * shall be liable in damages * * * for * * * death resulting in whole or in part from the...