Sweet v. Chi. & N. W. Ry. Co.

• Decision Date: 21 May 1914
• Docket Number: No. 128.,128.
• Parties: SWEET v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

157 Wis. 400

147 N.W. 1054

SWEET

v.CHICAGO & N. W. RY. CO.

No. 128.

Supreme Court of Wisconsin.

May 21, 1914.

Appeal from Circuit Court, Sauk County; C. A. Fowler, Judge.

Action by Rosa Sweet, executrix of James Sweet, deceased, against the Chicago & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.Edward M. Smart, of Milwaukee, for appellant.

Grotophorst, Evans & Thomas, of Baraboo, for respondent.

TIMLIN, J.

[1] This is an action under the federal Employers' Liability Act of Congress. James Sweet, an employé of the defendant interstate common carrier, while engaged in switching cars in its yard at Baraboo, Wis., on February 16, 1912, was killed, it is charged, by negligence of defendant. The plaintiff is his widow and executrix. The case was submitted to a jury, which found that the foreman of the switching crew and the engineer in charge of the switch engine failed to exercise ordinary care, which failure was the proximate cause of Sweet's death, also that there was no contributory negligence on the part of Sweet, and awarded as compensation to his widow $4,000, and as compensation to his feeble-minded child, over 21 years of age, but a member of his family, and dependent upon him for support, the sum of $1,000. The appellant complains there was no evidence of any negligence on the part of the defendant; that there was affirmative and undisputed evidence of contributory negligence; and that the trial court erred in instructing the jury on the measure of damages.

Omitting for brevity's sake introductory and explanatory matters, we may begin with the statement that the switching crew present at the time in question consisted of the foreman, Moran, the engineer, Pitts, the fireman, Gayman, and the subordinate switchman, James Sweet. In carrying on their switching operations, it became necessary or convenient to push by hand northerly onto the lead track a certain empty refrigerator car standing on a somewhat parallel track connected by switch with this lead track, upon which stood the switch engine and tender, back toward the switch and a short distance south of the switch. Pushing by hand, they got the refrigerator car so that the front part of it was on the lead track and the rear trucks on the frog of the switch, where it stuck, and they could move it no further by hand. The foreman, Moran, then directed that they pole the refrigerator car. Poling is an operation sometimes used in switching by which the switch engine is employed to push a car for a short distance, which car is standing upon another somewhat parallel and connecting track. A pole or piece of timber is held with one end against the car to be pushed and the other end pointing toward the engine, which, upon signal, creeps slowly up and presses against the end of this pole or timber, then stops, holding the timber in place; or the pole or timber may be held with one end against the front or rear of the engine, as the case may be, and the other end pointing in the direction of the car to be pushed, while the engine creeps slowly up until the pole or timber engages the car to be pushed. So far there is no substantial conflict in the evidence, and there is no doubt that the man holding the pole or timber is in a very dangerous position. There was evidence on the part of the plaintiff tending to show that the usual and customary way of poling was to stop the engine on signal as soon as the pole or timber had been firmly braced between the engine and the car to be moved in order to permit the man holding the pole to then step aside, after which the engine was started up smartly, giving the car to be moved a sudden push, thus starting it forward, when, of course, the pole or timber dropped to the ground. On the part of the defendant there was evidence tending to show that the usual and customary mode, when the man holding the stick held it against the engine, did not include a stop after the pole was braced, but was to keep on in steady motion toward the car to be moved, pushing it along; the assistant to continue holding the pole or timber in place. It will be observed that this is still more dangerous than the mode first described. There was evidence upon which the jury might decide that the mode first described was the usual and customary mode of performing this poling operation, and we will consider that point settled by the verdict in plaintiff's favor, and proceed to detail what happened in the instant case. It is one of the known operations of switching. Webster's Internat. Dic. “Poling.”

It is well known that switch engines stop and start only upon signal from the foreman of the switching crew. When the foreman suggested poling this car, Sweet went to get a pole or stick, and Moran signaled the engineer and had him back the engine up so that the tender was from 4 to 6 feet behind the south end of the refrigerator car, but on the lead track. Sweet came back with a piece of oak plank or timber 34 inches long, and about 4 by 8 inches, weighing about 28 pounds, and stepped on the rear step of the tender on the fireman's side, holding one end of this timber against the rear of the tender, and the other end pointing in the direction of the nearest part of the near end of the refrigerator car. He then said, “All right.” Moran was then standing on the engineer's side of the track opposite the opening between the engine and the refrigerator car, and facing Sweet, and the latter was in the position heretofore stated facing Moran. Moran gave a slow back-up signal to the engineer, who was leaning out of his cab looking back, and the engine moved back slowly until the pole or timber held by Sweet engaged the near end of the refrigerator car. Moran then gave no stop signal, and the engine did not stop, but pushed the car about the length of the stick, when suddenly the pole or timber slipped or dropped, and the engine crushed Sweet between the tender and the rear of the refrigerator car. When Moran saw that the pole or timber had slipped and the engine and car were coming together, he gave a sudden stop signal. The engine stopped promptly, but the car moved on 3 or 4 feet from the impetus it had already received. Sweet stepped out on Moran's side, fell down, stated he was “done,” and died. The refrigerator car moved altogether from 8 to 10 feet.

We think it is apparent from the foregoing that there is ample evidence to warrant the jury in finding that Moran was negligent in not directing this poling operation to be performed in the usual and ordinary way, and in omitting to signal the engineer to stop as soon as the pole or stick engaged the end of the refrigerator car so as to be firmly braced between that and the tender and the necessity of holding it avoided, and so enable Sweet to leave the step of the tender while the engine gave the necessary push on the stick against the refrigerator car. Whether there is also evidence sufficient to establish the negligence of the engineer is immaterial. Indeed upon the theory of the defendant and its explanation of the usual and customary mode of performing this poling operation, we would be inclined to agree with the learned circuit judge that this usual mode or practice is in itself very negligent. The engineer, Pitts, testified that he did not know much about the poling operation, and that he could not say positively whether he remembered poling a car before, and that he did not know they were going to pole the car in question, because nobody told him so, and further:

“In performing a poling operation it is usual for the engineer, when the man is in between holding the stick, to watch the rear end of the car that is being poled, and I certainly did in this case, to see how close I was going to the car, to see when the car was moving. I was not going to couple onto it, but I was going to shove it out over that switch. I don't know exactly how they were doing it. I was working according to signals. The man that was giving me the signals was standing out south of the lead track, and I was watching the end of the box car part of the time, and most of the time I was looking at the man that was giving me the signals. We were moving very slow.”

[2] It is argued that, in the exercise of ordinary care, Sweet should have taken this stick, placed one end of it against the car, and stood on the ground holding it, and have the foreman direct the engine slowly back to the stick until set. Then Sweet could have stepped to one side. We cannot think it affirmative proof of contributory negligence on the part of the injured employé that he did not direct the foreman to direct the backing of the engine slowly to the stick until it set. It is not usual for the subordinate to give directions to his superior. Equally unsatisfactory is the argument that, because he did not select the more dangerous position of standing on the ground between the approaching engine and the car to be moved, he was negligent. It is argued that he should have selected a longer pole or stick, but it does not appear that any other was available, and by creeping up slowly until the 34-inch timber was firmly braced between the engine and the car, and then stopping the engine and permitting Sweet to step aside, would have made this firm solid piece of oak quite appropriate for the purpose for which it was selected. The evidence on this point was left so that the jury could properly find that Sweet expected that this poling should be done in...