Sullivan v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Citation: 167 N.W. 311,167 Wis. 518
• Court: Wisconsin Supreme Court
• Decision Date: 03 April 1918
• Parties: SULLIVAN v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

167 Wis. 518

167 N.W. 311

SULLIVAN

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of Wisconsin.

April 3, 1918.

Appeal from Circuit Court, Douglas County; E. B. Belden, Judge.

Action by Frank Sullivan, administrator, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by the administrator of the estate of Bernard M. Conway, deceased, to recover damages for personal injuries sustained by said deceased while in the employ of the defendant as a brakeman in its yards in the city of Superior on the 20th day of March, 1916, and for the loss resulting to Bridget Conway, his mother, on account of his death resulting from the accident. The case was tried before a jury, and the following special verdict returned:

(1) Was the deceased, Bernard M. Conway, injured by falling from defendant's car? Answer: Yes.

(2) If you answer the first question “Yes,” then answer this: Was such fall caused in whole or in part by the grabiron in question giving way? Answer: Yes.

(3) Was the grabiron in question defective at the time in question? Answer: Yes.

(4) If you answer the first, second, and third questions “Yes,” then answer this: Did the fact that such grabiron was defective contribute in whole or in part to cause Conway's injuries complained of? Answer: Yes.

(5) If you answer the fourth question “Yes,” then answer this: Was Conway's death caused in whole or in part by the injuries so sustained by him? Answer: Yes.

(6) Did any want of ordinary care on the part of Conway proximately contribute to cause his injuries and death? Answer: No.

(7) What sum of money will reasonably compensate Bridget Conway, mother of Bernard M. Conway, for her pecuniary loss sustained by his death? Answer: $2,000.

(8) What sum of money will be reasonable compensation for the physical and mental pain and suffering endured by Conway from the time of his injury, if he was so injured, to the time of his death, as the result of such injury? Answer: $1,500.

From a judgment rendered in favor of the plaintiff on such special verdict, the defendant appealed.Luse, Powell & Luse, of Superior (A. H. Bright and J. L. Erdall, both of Minneapolis, Minn., of counsel), for appellant.

W. P. Crawford, of Superior, for respondent.

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

The defendant moved to direct a verdict in favor of the defendant; for judgment notwithstanding the verdict; to change the answer, “Yes,” to the first question of the special verdict to, “No”; to change the answer, “Yes,” to the fourth question of the special verdict to the answer, “No”; and the answer, “Yes,” to the fifth question of the special verdict to the answer, “No.” At all times the appellant has maintained that the evidence was not sufficient to sustain the verdict or a judgment in favor of the plaintiff, and that the plaintiff utterly failed to make out a case against the appellant. This calls for a brief review of the evidence to determine whether the verdict has any support therein.

[1] It appears that the deceased was a brakeman in the employ of the defendant. At about 2 o'clock a. m., March 20, 1916, he was assisting in taking a drag of cars from the defendant's Belknap yard in the city of Superior to the South Shore Railway Company's yard in the same city. He was the rear brakeman on this drag of cars. It was passing from a lead or switch track to the main line track. There were eight or nine cars in the drag. It was the duty of the deceased to close the switch after the cars had passed onto the main track. While the cars were passing over the switch Conway (or his lantern, as it was dark,) was seen on top of the cars near the rear end of the drag. He would naturally be in this locality at the time in order to descend from the rear car and close the switch when the drag had passed over and onto the main track. Suddenly his lantern was seen to go out, and nothing more was seen or heard of Conway until about ten minutes later, when he climbed into the engine of a rear drag of cars following along behind the one on which he was working, with his unlighted lantern in one hand and a handhold or ladder round in the other. He was very pale and in a dazed and semiconscious condition, but with no scratch, bruise, scar, or other external evidence of injury upon him. No evidence was given as to what he said. He “crumbled up,” and was assisted upon the fireman's seat box. He was rubbing his right leg, and appeared weak and somewhat faint, not a dead faint. He was taken by this engine to the depot, where he was carried to an ambulance and taken to the hospital.

Appellant concedes that the evidence showed that a handhold in the ladder upon C. P. car No. 89652 was broken off about halfway up on the car, and that this handhold was the one which Conway had in his hand when he came into the cab of the engine. It is also conceded that this car was in interstate commerce. There was also evidence that this car was near the rear end, if not the last car, in the drag. There was a fresh break on one side of the ladder round and an old break with rust on the other. When he was taken to the hospital he was suffering from a brain lesion. He remained in the hospital until the 13th day of April. He was not cured or well when discharged from the hospital and was never well again. He was later committed to an insane hospital at Newberry, Mich., at which institution he died on the 30th day of July, 1916. The cause of his death was given as “paralysis of the insane.”

The medical experts who testified in the case agreed that a man may receive an injury on the head from a fall without any exterior marks on his person; that this fall, slight or great, may be sufficient to produce a brain lesion, and may result in insanity and death.

It is a very logical inference from the facts proved in this case that a defective ladder round or handhold on C. P. car No. 89652 broke and gave way while Conway was either ascending or descending the car in the performance of his duties, and that as a result thereof Conway fell to the ground and was injured, and that the finding of the jury to the effect that Conway was injured by falling from defendant's car is not without evidence to support it.

[2] It was the contention of the defendant that the deceased was a victim of syphilis, and that his death was due to syphilis and not to injury. The evidence is quite persuasive that he did have syphilis. But it was not at all conclusive that his death was not due, in whole or in part, to the injuries received by him. It is in evidence that when Conway went to work that night he appeared to be in proper mental and physical condition for the performance of his duties. It appears that he did satisfactorily perform the duties of a brakeman until the exact moment of the happening of this accident, and immediately upon the happening of the accident he became incompetent and incapacitated for work of any kind. Within a very short time after his arrival at the hospital it was determined by the doctor called to attend him (who, by the way, was in the employ of appellant) that he was suffering from a brain lesion. Appellant contends that the brain lesion might have resulted from syphilis. This appears to be true. It might have resulted from syphilis. It is also true that it might have resulted from the injury sustained by him, according to all the medical experts who testified in the case. The question submitted to the jury was whether his death resulted in whole or in part from the injury sustained. That was the question they were called upon to determine. The evidence furnishes some basis for their conclusionthat the accident and resulting injury had something to do with his death. We may confess strong suspicions that his syphilitic condition was principally, if not wholly, responsible for his death. We cannot say however, that there was no evidence in the case from which the jury might find that his death was due, either wholly or in part, to the accident. We, therefore, think that the verdict of the jury should not be disturbed, nor should the court have granted appellant's motion for direction of a verdict.

[3] Appellant urges upon our attention various asserted errors of the trial court in the improper admission of testimony offered by the plaintiff. Counsel for respondent vigorously protests that errors committed by the court in this particular cannot now be considered...