Sloan v. Chi., M. & St. P. Ry. Co.

• Decision Date: 28 January 1913
• Citation: 139 N.W. 529,151 Wis. 645
• Parties: SLOAN v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

151 Wis. 645

139 N.W. 529

SLOAN

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Jan. 7, 1913.

Dissenting Opinion, Jan. 28, 1913.

Appeal from Circuit Court, La Crosse County; E. C. Higbee, Judge.

Action by Augusta Sloan against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment dismissing the action, plaintiff appeals. Affirmed.

Timlin and Kerwin, JJ., dissenting.

Action to recover compensation for damages caused to the widow of Frank Sloan, by his death, alleged to have been produced by negligence of defendant's servants. Issues were duly joined. All conditions precedent to the right to maintain the action were alleged and admitted or proved.

The evidence established as facts, the following: In the night-time of September 9, 1909, while the intestate was on duty in defendant's yards at La Crosse, Wis., in charge of a switching crew he was run down and killed by cars which were being moved under his direction. Besides the engineer and fireman there were two men associated with Sloan, Mr. Kessler, as head brakeman, and Mr. Hawkins, as rear brakeman. It was a dark foggy night. Because of such condition Kessler was stationed rather nearer the engine than usual so he could readily receive signals from Sloan and repeat them to the engineer. It was Hawkins' duty to ride the rear cars and as they were, from time to time, spotted to set the brakes. Because of fog and darkness Sloan assumed the duty of throwing the switch for the movements leading up to the accident. The engine was operating “head on” with a string of cars and a caboose. There were several side tracks, substantially parallel with a main track, and connected therewith, directly or indirectly. Just prior to the particular movement the engineer executed orders to set a caboose in on what was known as track one. Failing to do so efficiently by the first effort, there was a return and the caboose was “kicked” on to a satisfactory clearance. Hawkins rode the caboose to its position and set the brakes. Sloan was in front of the caboose or between it and the particular switch. Kessler was on the moving cars, toward the engine, where he could receive and transmit signals as before indicated. The movement next to be executed, according to Sloan's orders was to recede to a clearance of the switch to track one and that to track four, and then return and push the cars in on the latter, the switches being properly turned for that purpose. By inadvertence they were not turned so as to direct the cars in on track four but were left so as to give direction back in on track one. Sloan gave the signals for the return movement. They were received by Kessler and repeated to the engineer. Hawkins about this time descended from the caboose and, after having some altercation with a trespasser nearby, passed over toward track four,--the one on which the cars were expected to come. Sloan was near the particular switch just before the return movement of the cars. Kessler was some distance away on the moving cars and some six car lengths from the rear. On account of the conditions, he could not see Sloan's person but could see his lantern. He could not see definitely, what track the cars were on. His attention was directed to receiving the signals from Sloan and repeating them to the engineer. The initial signal for the return movement was given by a person standing near the particular switch. There was no other person at that point except Sloan. After such initial signal, others were given for a continuance of the return movement, the person giving them, at the same time going in the direction the cars were moving and on or near track one. Soon after the last signal was given, he disappeared and soon thereafter Hawkins, who had observed him step into the pathway of the coming cars, a short distance therefrom and endeavored, but too late, to arouse his attention to the peril, succeeded in efficiently signalling for the movement of cars to stop. Sloan was found dead about where Kessler had seen his lantern disappear after the last signal to come on was given. About the time Sloan was seen at the switch he had some altercation with a trespasser on the track, presumably the same one who had attracted the attention of Hawkins.

Upon the theory that the evidence tended to show that Sloan came to his death by reason of his own carelessness and that, if there was any efficient negligence on the part of his associates it was either in the conduct of Kessler or Hawkins, and with the firm conviction, as stated by the judge, that there was no warrant in the evidence for a finding of such negligence, the cause was submitted to the jury for answers to special questions, resulting in substantially these findings, among others, in the whole, if warranted by the evidence, entitling plaintiff to recover. Kessler was guilty of want of ordinary care proximately causing the death of Sloan. Hawkins was also guilty of such want of care. Sloan was guilty of efficient contributory fault. His want of care was of lesser degree than that of the trainmen. It was Hawkins' duty to turn the switch.

Upon motion the trial court changed the finding as to negligence of Kessler and also as to negligence of Hawkins, characterizing the reversal by a decision to the effect that there was no warrant for the finding that it was the latter's duty to turn the switch, and ordered judgment dismissing the action with costs, which was accordingly rendered.

Frank Winter and A. E. Bleekman, both of La Crosse, for appellant.

C. H. Van Alstine and H. J. Killilea, both of Milwaukee, for respondent.

MARSHALL, J. (after stating the facts as above).

It does not seem best to review the evidence here, in detail, to demonstrate the correctness of the conclusion to which we have arrived. The statement of facts sufficiently justifies that. It indicates that the opinion which the trial judge had at the close of the evidence was well grounded. On the motion to correct the verdict and for judgment in respondent's favor, he carefully reviewed the evidence, showing that it was the duty of Sloan, and of no one else on the particular occasion, to turn the switch; that it was his duty, and that of no one else, to give the signals for the movement of cars; that he, and no one else, gave the signals; and that the movements, up to the time he stepped into the region of danger and was killed, were under his personal direction.

[1] From the nature of the case, the rule applies, very strongly, that in determining whether there is a jury question for solution the trial judge has such superior opportunity for reaching a right conclusion as to the matter of fact involved,--that is as to whether there is room in the evidence for a determination to a reasonable certainty in either of two ways, that his decision is entitled to such weight on appeal as not to be legitimately disturbable without a manifest showing of its being wrong. The mere fact, looking at the printed record alone, that we would incline to a different view, is not sufficient. The weight of superior opportunity below to discover the right of the matter, would still bear down the scales in favor of the decision complained of. All reasonable doubts arising from the record itself, and those arising from appreciably contemplating the peculiarly advantageous position of the trial judge, must be overcome, in such a case as this, in order to successfully challenge the initial decision. As has been said, over and over again, that dignity is due to the decisions of trial judges on matters of fact. The letter and spirit of our system of jurisprudence demands and commands it. Justice, in general, will be most certainly effectuated by this court firmly adhering to such rule. Such a course will give courage and stimulus to trial judges to perform the whole duty of their high office and shape litigation speedily, directly, economically and certainly as practicable, to a finality. Any other course would strongly tend to weaken trial jurisdictions where there is most need of executive strength and judicial courage.

[2] Testing the record before us by the rule indicated, we fail to discover any fair ground for disturbing the judgment appealed from. We come far short of being able to say the court below was wrong in deciding that there was no evidence of negligence on the part of either Kessler or Hawkins. The fact that the finding as to Hawkins' duty to turn the switch was not formally changed or set aside, is immaterial. The erroneous notion entertained by the jury, if they intelligently considered the matter at all, that Hawkins was negligent must have been grounded on the theory, which is not only without support in the record but contrary to all the evidence on the subject,--that it was his duty to turn the switch. Therefore the change of one in effect changed the other; and, in any event, the court might have granted judgment in defendant's favor, notwithstanding the verdict, without changing any of the answers, though to first shape the verdict so as, on its face, to form a basis for the judgment, is the usual practice and is the formal, if not the best, though not essential way. What is said on this subject applies to the fact that the finding as to the negligence of Sloan being slighter than that of the trainmen was not changed. The changes so as to negative there having been negligence of any one but Sloan, carried with it the comparative found feature of his negligence. Moreover, his fault, in the judgment of the trial court, appeared conclusively from the evidence, leaving the jury finding in the case, really immaterial.

Judgment affirmed.

TIMLIN, J. (dissenting).

If I could make myself believe that “because of the fog and the darkness Sloan [decedent] assumed the duty of throwing the switch for the movements leading up to the accident,” I would have no difficulty in agreeing with the majority opinion in this case. The case turns upon this point of...