Sparks v. Wis. Cent. Ry. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: DODGE
• Citation: Sparks v. Wis. Cent. Ry. Co., 139 Wis. 108, 120 N.W. 858 (Wis. 1909)
• Decision Date: 03 May 1909
• Parties: SPARKS v. WISCONSIN CENT. RY. CO.

139 Wis. 108

120 N.W. 858

SPARKS

v.WISCONSIN CENT. RY. CO.

Supreme Court of Wisconsin.

April 20, 1909.

Dissenting Opinion, May 3, 1909.

Appeal from Circuit Court, Wood County; Charles M. Webb, Judge.

Action by Eliza Sparks, administratrix, against the Wisconsin Central Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for a new trial.

Action for causing death of plaintiff's husband, William Sparks, by negligence. Deceased was a car inspector in defendant's yards at Abbotsford, his duty being, among other things, to make an inspection of the running gear of the cars in trains as they passed into the yards from their trip. To do this it was necessary for him to take a crouching or sitting position a few feet away from the track upon which the train ran, so as to enable him to see the wheels and brakes of a car as it approached him, and also to see the numbering of the car in which any defect was discovered. The yard at Abbotsford consisted of about eight nearly parallel tracks running east and west, with a space between tracks of 8 feet. These tracks were used for the purposes of breaking and making up freight trains, in the doing of which work cars were moved about on the various tracks, ordinarily at a speed of two or three miles an hour. There was evidence of a rule and custom to have a man in front of any car, which was pushed by an engine, either on the ground or on the rear of such car, in order to look out for any person in danger, employés or otherwise. On the day in question deceased assumed the duty of inspecting a train coming from the west on what was called “north track No. 2,” and placed himself within about a foot of north track No. 1, which was south, he facing north and slightly westward in order to perform his duty. Eastward of him some 50 feet or more, stood a caboose on track No. 1 with brakes set, to which still eastward were to be attached the cars making up a train for departure, as plaintiff knew. This process consisted of collecting cars from other parts of the yard, and pushing them back unto the switch and coupling them to this caboose, and did not involve necessity or probability of any moving of the caboose more than a foot or two by reason of impact. While plaintiff was inspecting his train, the switching crew found it necessary to move the caboose backward toward him, in order to make more room for cars on track No. 1, and it was pushed westward slowly some hundred feet, without any person in position to observe the track in front of it, and without warning. Deceased was so near that track that the steps of the caboose caught his shoulder, threw him over in front of the wheels, and he was killed. A verdict was directed for defendant, and judgment entered, from which the plaintiff appeals

Marshall, J., dissenting.

Barton & Kay and R. E. Andrews, for appellant.

Walter D. Corrigan and W. A. Hayes, for respondent.

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

The direction of verdict was predicated upon the conclusion of the trial court that the evidence failed entirely to show negligence of defendant proximately causing the injury, and also that contributory negligence on plaintiff's part appeared conclusively. Such decision is the error assigned and presented for consideration.

1. The moving of cars through a yard in which various employés are constantly employed upon and about the tracks, without any precaution in the way of signal or lookout at the forward end of the moving cars, is conduct which, under the decisions of this court, will support a finding of negligence. If there is no rule or regulation for such precautions, that may be negligence of the employer. Promer v. Milwaukee, etc., R. Co., 90 Wis. 215, 63 N. W. 90, 48 Am. St. Rep. 905;Bain v. Northern Pacific Ry. Co., 120 Wis. 412, 98 N. W. 241;Polaski v. Pittsburgh Coal Dock Co., 134 Wis. 259, 114 N. W. 437, 14 L. R. A. (N. S.) 952. If there are sufficient and adequate rules, but failure to comply with them, the negligence may be that of fellow servants. Smith v. C., M. & St. P. Ry. Co., 91 Wis. 503, 65 N. W. 183;Portance v. Lehigh Valley Coal Co., 101 Wis. 574, 77 N. W. 875, 70 Am. St. Rep. 932. The distinction is, however, immaterial in the case of railroad operations. Section 1816, St. 1898. There was in this case evidence tending to prove that regulations requiring lookout were duly prescribed, but that no such, or any, precaution was in fact taken. No person was in position to see whether any employé was in danger, or to give him warning of the approaching train or car, and no signal was given. There was evidence, therefore, of negligence for proximate results of which defendant would be responsible. Indeed the trial court apparently did not differ from this view, but based the direction of verdict upon absence of proximate causal relation between defendant's want of care and the plaintiff's injury, because the former could not have anticipated that the latter would, in performing his duties, have done the particular acts proved against him; in other words, that this particular accident and injury to this particular employé was not within reasonable anticipation. That is not at all essential to proximate causation. It is enough that defendant should, in exercise of reasonable foresight and intelligence, have anticipated as within the probabilities some injury to some person. Meyer v. Milwaukee E. Ry. & L. Co., 116 Wis. 336, 93 N. W. 6;Schmeckpepper v. C. & N. Ry. Co., 116 Wis. 592, 595, 93 N. W. 533;Feldschneider v. C., M. & St. P. R. Co., 122 Wis. 423, 431, 99 N. W. 1034;Morey v. Lake Superior T. & T. Co., 125 Wis. 148, 156, 103 N. W. 271, 12 L. R. A. (N. S.) 221;Owen v. Portage Telephone Co., 126 Wis. 412, 419, 105 N. W. 924. The cited cases declaring the absence of warning or lookout to be legal negligence are predicated upon the view that such probability of injury exists, for mere carelessness from which no injury to another can be anticipated is not negligence in the legal signification. Compty v. Starke D. & D. Co., 129 Wis. 622, 109 N. W. 650, 9 L. R. A. (N. S.) 652. Apart from such authority, however, we deem an inference entirely justifiable that the unwarned shunting of cars over tracks, in yards where men are variously employed upon and about such tracks upon independent work engrossing their attention, is so fraught with danger of collision with such employés that any reasonable man should anticipate some injury as within the probable results of such practice. We must therefore hold that the question of defendant's negligence, and its causal connection with plaintiff's injury, was supported by some evidence.

2. The more doubtful question is that of contributory negligence. Plaintiff, it is asserted, placed himself in a position of...