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

• Decision Date: 18 November 1913
• Court: Wisconsin Supreme Court
• Parties: SOMMERFIELD v. CHICAGO, M. & ST. P. RY. CO.

155 Wis. 102

143 N.W. 1032

SOMMERFIELD

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

Supreme Court of Wisconsin.

Nov. 18, 1913.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by Julius Sommerfield against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and new trial ordered.

Barth and Klubertanz, mentioned in the second instruction, were engaged with plaintiff in moving the cars, and there was evidence that Barth, seeing the approaching train, called to Klubertanz to look out.

On May 12, 1911, plaintiff was employed by the Schlitz Brewing Company, and in the performance of his duty was engaged in moving cars along one of the railroad tracks in the yards adjacent to said company's plant. Horses were used in moving the cars; the crew consisting of three men. On this occasion the horses could not start the car because the brake shoes were tight against the wheels. Plaintiff took a club which he used for the purpose, and attempted to knock the brake shoes loose. While standing with one foot over the rail and one hand on the lower rung of the ladder of the car, the defendant railway company switched in other cars against the one upon which plaintiff was working, and he was run over, and his right leg crushed so that amputation below the knee was necessary. This action was brought to recover damages for the injuries sustained. The complaint alleged negligence on the part of the defendant by reason of its failure to warn the plaintiff of the approach of the cars which were being switched in, by the ringing of the engine bell or the blowing of the whistle, or some other signal. The complaint also alleged that the defendant company was the owner of the tracks in the yards of the brewing company upon which the cars were standing when the accident occurred. The jury found that the defendant was negligent, and by its answer to the sixth question in the special verdict found the plaintiff guilty of contributory negligence, and in accordance with such finding judgment was entered in favor of the defendant dismissing the complaint, from which judgment plaintiff appeals.

The plaintiff filed separate exceptions to the following portions of the charge under the sixth question in the verdict.

“(1) You may take into consideration also this instruction: That a person entering upon an employment in which he is engaged when injured assumes all risk or danger of injury ordinarily incident to such service. That is, he is held to assume the ordinary risks of the employment upon which he enters, so far as those risks are known to him, or in so far as they could become known to a person of ordinary care; all such risks he assumes in the employment in which he is engaged.

(2) It was the duty of the plaintiff to exercise ordinary care to keep himself out of danger. It was his duty to listen for signals that cars were approaching. And if you believe from the evidence that he did not listen for signals that cars were approaching, and for that reason failed to hear what Nick Barth called out to Klubertanz, he was guilty of a want of ordinary care. And if you believe from all the credible evidence that he was guilty of a want of ordinary care, and that such want of ordinary care naturally and probably contributed to his injury, and that he, as a person of ordinary intelligence and prudence, ought to have seen, under the attending circumstances, that by failure to listen for signals he might receive injury of some kind to his person, you will answer the sixth question ‘yes.’ Otherwise you will answer the question ‘no.’

(3) You should also take into consideration all the evidence and surrounding facts and circumstances bearing upon the question as to whether the plaintiff's fellow servants, those in his immediate car-moving crew, the other two men, or any of them, failed to exercise ordinary care, or were neglectful of any duty which he or either of them owed to the plaintiff at the time, for the plaintiff's safety, which proximately contributed to his injury. And if you so find that they failed to exercise ordinary care with respect to his safety by giving notice or warning, then your answer to this question should be ‘yes.’ Because the plaintiff is chargeable with the neglect or failure to exercise ordinary care for his safety on the part of his fellow servants; and their neglect, if you find there was any such neglect, or failure to exercise ordinary care on their part, which proximately contributed to his injury, it is imputed to him in the law.”Harry M. Silber, of Milwaukee (A. J. Schmitz, of Milwaukee, of counsel), for appellant.

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

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

The appellant claims that he was entitled to judgment on the verdict, or else to a new trial.

[1] The first claim is based on the assumption that the court should...