Slam v. Lake Superior Terminal & Transfer Ry. Co.

• Decision Date: 18 February 1913
• Parties: SLAM v. LAKE SUPERIOR TERMINAL & TRANSFER RY. CO. ET AL.
• Court: Wisconsin Supreme Court

152 Wis. 426

140 N.W. 30

SLAM

v.LAKE SUPERIOR TERMINAL & TRANSFER RY. CO. ET AL.

Supreme Court of Wisconsin.

Feb. 18, 1913.

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.

Action by Mike Slam against the Lake Superior Terminal & Transfer Railway Company and the Northern Coal & Dock Company. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

The action is for personal injuries. The defendants are sued as joint tort-feasors. The Northern Coal & Dock Company, hereinafter called the dock company, was a corporation owning and operating a coal dock in Superior, having large coal sheds on the water front, where coal was received from vessels and loaded by chutes into freight cars standing on a railway track at the rear of the sheds. The defendant Lake Superior Terminal & Transfer Railway Company, hereinafter called the railway company, was a railway corporation owning and operating a switching railway at Superior, and doing the necessary switching in the dock company's yard, not only on the switch track immediately at the rear of the sheds, but on two parallel tracks at the side thereof. The plaintiff was a laborer about 28 years of age at the time of the accident (November 12, 1910), and had been in this country about three years, during all of which time he had lived at Superior and worked about the coal docks and yards. The plaintiff had worked four days for the defendant dock company at the time of his injury. On that morning he was a member of a gang loading nut coal into cars on the switch track aforesaid, which was at the rear of the coal shed, and was called track No. 3. The gang was composed of five men, one of whom went into the shed and managed the chute, and the other four (among whom was the plaintiff) went into the car and distributed the coal as it came down the chute. In going into the car in question, these men utilized a small ladder with three or four rungs, which they leaned up against the grain door in the otherwise open doorway of the car. Parallel with this track, and eight feet distant therefrom, was another switch track, called track No. 4, and at a like distance still further away, was track No. 5. The clearance space between freight cars on tracks 3 and 4 was four feet. About 300 feet southerly from the coal shed, and in connection with track 4, was situated a car scale, where cars were accustomed to be weighed. This operation, like all other switching operations in the yard, was done by the defendant railway company. When a string of cars was to be weighed, they would be switched to a point south of the scale, shunted onto the scale one at a time, and then kicked one by one northerly along track 4 toward the coal dock and shed. As each car moved northerly, it would strike the string of cars already weighed, couple itself, and, by its momentum move the entire string somewhere from 4 feet to 15 or 18 feet slowly northward. No man was ever stationed on the head car to give warning when this movement was going on. At about 10 o'clock in the morning of the day of the accident and while the plaintiff was at work in the coal car on track 3, a weighing operation of this kind was going on with a string of 11 cars. A considerable number had been weighed and kicked northward, so that the string of such cars reached nearly to that part of track 4 directly opposite to the car on track 3, in which the plaintiff was working. The plaintiff's testimony tends to show that at this juncture he had completed his work in the car, and came out of the car door the first of the gang, and descended the ladder backwards to the ground; that, just as he was stepping to the ground and straightening up to move away to help push an empty car on track 3 up in place of the loaded one, the string of empty cars on track 4 was moved forward by the impact of a car just weighed, and struck the plaintiff on the back and side, throwing him to the ground, and inflicting serious injuries.

The plaintiff's claim was and is that there was sufficient evidence to justify findings (1) that the railroad company was negligent in not providing any lookout or signal when the cars were moved forward on track 4 after weighing; (2) that the dock company was negligent in failing to warn the plaintiff of the danger, and in failing to provide signals; and (3) that the plaintiff was free from contributory negligence and assumption of risk. From a judgment for the defendants on a directed verdict, the plaintiff appeals.Dietrich & Dietrich, of Superior, for appellant.

J. A. Murphy, of Superior, Abbott, Merrill & Lewis, of Duluth, Minn., and Luse, Powell & Luse, of Superior, for respondents.

WINSLOW, C. J. (after stating the facts as above).

While this is a case which may fairly be said to approach the border line, we think it clearly a case which should go to the jury on all propositions.

[1] Touching the question of the alleged negligence of the defendants, it is to be observed that this is not a case of an ordinary switching yard where all the tracks are used for switching purposes and where men are not expected to be, except for the purpose of assisting in the movement of cars, but a case where a track used for loading purposes, and about which men must work in the midst of dust and noise, is placed next to a track which is used actively for switching purposes, and for a kind of switching in which the cars move intermittently without warning, and without the presence of a locomotive. It would be reasonable enough to hold, as matter of law, that in the ordinary switchyard, where only switching is being done, it could not be justly held that warning of every switching movement must be given; but we do not feel that, under the circumstances here present, we can say so. Men were here required to labor in a dusty, noisy, and absorbing occupation in closed cars on track 3. At intervals they were obliged to come out into the four-foot clearance space between tracks 3 and 4, and with heavy instruments move the loaded car away and put an empty one in its place, and then climb into the empty car and repeat the loading operation. Under these circumstances, we think it clearly a question for the jury whether the rules of ordinary care do not require the keeping of a lookout or the giving of a signal when a car is to be moved on track 4, or the giving of a warning to the workman in advance that he must look out for such a movement.

[2] We also regard the questions of contributory negligence and assumption of risk as questions for the jury. It is true that the plaintiff had worked nearly all of the time in and about coal docks at Superior for some three years. His testimony, however, tends to show that, at the other docks and yards where he worked, there was no such situation of danger as there was at the place in question--i. e., no place where cars were shunted along without attendance, signal, or warning upon a track close to the loading track, as was done here. It seems, also, by his testimony that he had worked on the coal company's dock only four days before the morning of the accident; that, when he went to work the first day, he loaded one car on the track in question, and was then sent to work in a boat, where he worked till the end of the second day, and then worked two days dumping coal in another part of the yard; that on the morning of the fifth day he was sent to load coal at 7 o'clock, and loaded four or five cars, when his injury took place; that he saw no cars on track 4 the first day, and saw no cars moving on that track on the day of his injury, until the time that he was hurt; and that he was almost smothered with dust when he...