Sheridan v. Bigelow

• Decision Date: 22 May 1896
• Citation: 93 Wis. 426,67 N.W. 732
• Parties: SHERIDAN v. BIGELOW ET AL.
• Court: Wisconsin Supreme Court

93 Wis. 426

67 N.W. 732

SHERIDAN

v.BIGELOW ET AL.

Supreme Court of Wisconsin.

May 22, 1896.

Appeal from circuit court, Bayfield county; John K. Parish, Judge.

Action by Thomas Sheridan against Anson A. Bigelow and others to recover compensation for personal injuries. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Defendant was engaged in operating a logging railroad which hauled logs to the shores of Chequamegon Bay, in Bayfield county, at which point the logs were unloaded as hauled, by a crew of men employed by W. A. Simpson & Co. Plaintiff was an employé of such company. Defendant had nothing to do with unloading the logs. The unloading consisted in rolling the logs from the cars onto skidways and into the water. The skidways sloped from the side of the track down towards the bay. The skids were placed from two to three feet apart, and up as near to the track as the movements of the train would permit. They were loose, and likely to move up so that the cars would strike them; and it was customary for the unloaders, in such cases, to place them back the proper distance. Plaintiff knew this fact, and knew that, if the proper care was not taken to replace the skids, they would be liable to be hit by the cars. On the occasion in question, one of the skids had been allowed to remain projecting sufficiently far towards the track to interfere with the passage of the train. Plaintiff stood about six feet back from the track, with his back towards the way the train was approaching. He paid no attention to whether the skids were in proper place or not. The train, as it moved into position for unloading, struck the skid, throwing it against plaintiff, by means of which he was knocked under the cars, and injured. The jury found that plaintiff was injured in the manner above stated; that defendants failed to use ordinary care to keep their track free from obstructions on the occasion in question, or to use reasonable diligence to observe whether there was any obstruction on the track; and that there was no want of ordinary care on the part of plaintiff that contributed to produce the injury. Damages were assessed at $2,000. At the close of the evidence a motion was made to set aside the verdict, and for a new trial, because the verdict was contrary to the law and evidence. The motion was denied. Judgment was entered on the verdict in plaintiff's favor, from which this appeal was taken.Tomkins & Merrill, for appellants.

Sanborn, Dufur & O'Keefe, for respondent.

MARSHALL, J. (after stating the facts).

The verdict is fatally defective for want of any finding on the subject of proximate cause. It finds specially that defendant did not exercise ordinary care in the operation of its train, and in keeping the track free from obstructions; that plaintiff was injured, and was not guilty of any want of ordinary care which contributed to produce such injury. But that is not sufficient to cast upon defendant the consequences of such injury. It should not be forgotten, in such cases, that the mere fact that one person is injured by the failure to exercise ordinary care on the part of another in respect to some duty which such other owes...