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

• Decision Date: 27 May 1912
• Citation: 147 Wis. 590,136 N.W. 337
• Court: Wisconsin Supreme Court
• Parties: TIDMARSH v. CHICAGO, M. & ST. P. RY. CO.

147 Wis. 590

136 N.W. 337

TIDMARSH

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

Supreme Court of Wisconsin.

May 14, 1912.

Dissenting Opinion May 27, 1912.

Appeal from Circuit Court, Milwaukee County; F. C. Eschweiler, Judge.

Action by George F. Tidmarsh, administrator, against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Winslow, C. J., and Marshall and Siebecker, JJ., dissenting.

Action brought by plaintiff, as administrator, to recover damages for the death of his intestate, John H. Tidmarsh, alleged to have been caused by the negligence of the defendant. Deceased met his death under the following circumstances: In the yards of the Pennsylvania Coal & Supply Company, located at the southern terminus of Fifteenth street in the city of Milwaukee, the defendant owns and operates two parallel tracks running east and west. One branches from one of the main lines of the railway company which run east and west, and extends southeasterly till it reaches the yards of the coal company, where it runs east and west, and is known as track No. 1, or the north track. The other branches off from the south side of track No. 1, runs parallel with it in an easterly direction, and is known as track No. 2, or the south track.

On the day of the accident, December 24, 1908, a car stood on the north track so close to the switch that a car on the south track could not be moved past it, and a little east of that car there was another car standing on the south track. The deceased, who was foreman of a switching crew, came from the west on the north track with an engine and six or seven cars for the purpose of coupling onto the car standing on the south track. The engine was pushing the cars, and when the easterly car had run past the switch, and was on the south track, the deceased discovered that the cars would not pass the car on the north track, and he concluded to pole the car on the north track east far enough to clear. Thereupon the deceased picked up a stick lying near, which was about 6x6 and 4 or 5 feet long, placed one end against the northeasterly corner of the easterly car on the south track, or against the southwest corner of the car on the north track, and signaled the engineer to come ahead. The signal was repeated by a switchman named Geiger, who was stationed on the top of the easterly moving car, and the engineer started the cars east, and when each end of the stick was in contact with the cars, the stick slipped off. Tidmarsh then signaled “back up.” The signal was obeyed, and he placed the stick on the southwest corner of the car on the north track and waited for the cars on the south track to come east and strike the stick, and when the stick was struck the car on the north moved east until the timber dropped. The stick dropped because the distance between the cars at the time, caused by the widening of the space between the tracks, was greater than the length of the timber. While holding the stick between the corners of the cars, the deceased had his back to the south, and when the timber dropped, he turned and walked, facing east, ahead of the moving cars toward the car standing on the south track, and was caught, crushed, and killed between the drawbar of the moving easterly car and the drawbar of the standing car on the south track.

The negligence charged was that the defendant's train crew disregarded and disobeyed the signals of John H. Tidmarsh to proceed slowly with the engine and cars, and that said train crew did negligently, recklessly, and carelessly run said engine and cars, causing said plaintiff's intestate to be thrown against and crushed between one of the said cars being moved by said engine and the car standing upon track No. 2.

The jury returned the following special verdict: (1) That John H. Tidmarsh was killed by a collision between two of defendant's cars on December 24, 1908--answered by the court. (2) That John H. Tidmarsh gave a signal to the switchman Geiger to stop the cars on track No. 2 after staking or poling the car on track No. 1 for the last time. (3) That there was a want of ordinary care on the part of switchman Geiger while he was on the moving car on track No. 2. (4) That such want of ordinary care on the part of switchman Geiger proximately contributed to the injury and death of John H. Tidmarsh. (5) That there was a want of ordinary care on the part of John H. Tidmarsh at the time and place in question--answered by the court. (6) That such want of ordinary care on the part of John H. Tidmarsh proximately contributed to his injury and death--answered by the court. (7) That the want of ordinary care of the switchman Geiger was greater than the want of ordinary care of John H. Tidmarsh. And (8) damages, $5,000. At the close of the evidence defendant's counsel moved the court to direct the jury to return a verdict for defendant, which motion was denied. The court submitted, and the jury returned, the above special verdict, and from a judgment entered thereon the defendant appealed.

C. H. Van Alstine and H. J. Killilea, for appellant.

McCabe & Dahlman, for respondent.

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

[1] It is claimed by defendant that Geiger was not guilty of actionable negligence. The jury found that the deceased gave him a signal to stop the moving cars after the car was poled the last time, and that he was guilty of a want of ordinary care that contributed to produce the injury. Such want of ordinary care was the failure to transmit the signal to stop the cars. There is evidence to sustain the finding that a signal to stop the cars was given to Geiger by the deceased, and that it was not transmitted by the former to the engineer. The failure to transmit such a signal, under the circumstances, must be deemed a sufficient basis for a finding that Geiger was guilty of actionable negligence. But the defendant argues that, conceding Geiger was guilty of negligence, the negligence of the deceased was greater and contributed in a greater degree to produce the injury, and therefore the court should have granted the motion to direct a verdict for the defendant. The jury found Geiger's negligence was greater than that of the deceased, but no finding was made as to whose negligence contributed in a greater degree to produce the injury, though the defendant asked that such a question be submitted.

The evidence shows that the cars to be coupled were equipped with automatic safety appliances permitting them to be coupled by impact without the necessity of men going between the ends of the cars. The coupling could be, and usually was, done by raising a lever at the corner of the car with one hand, thus lifting the pin, and reaching in with the other hand and opening the knuckle. In our view of the case, the fact that the cars were equipped with automatic couplers is not very significant. Had they been furnished with the old style link and pin coupler, there would have been no occasion for a person making the coupling to place himself between the drawbars. By standing on one side or the other thereof, the coupling could be made with practically no risk to any portion of the body, but the hand. In the instant case the hip and body of deceased were crushed between the drawbars, showing that he was in a position not required by any mode of coupling. Therefore, so far as known, he needlessly placed himself in a dangerous position. Under what assumption of safety he did so will never be definitely known. That he believed himself safe must be taken for granted. That such belief was founded upon the assumption that his signal to stop was obeyed is at least probable. True, as defendant argues, a glance to the rear would have disclosed the fact that it was not obeyed, but such glance was evidently not given.

[2] The situation is one from which a number of quite reasonable and varying conclusions can be legitimately drawn, and hence the finding that Geiger's negligence was the greater cannot be disturbed.

[3] This brings us to a consideration of whether or not it was error to refuse to submit the question proposed by the defendant requiring the jury to find whose negligence, that of Geiger or that of the deceased,contributed in a greater degree to produce the injury. Section 1816, Stats., as amended (Laws 1907, c. 254), provides: “Every railroad company shall be liable for damages for all injuries whether resulting in death or not, sustained by any of its employés, subject to the provisions hereinafter contained regarding contributory negligence on the part of the injured employé: (1) When such injury is caused by a defect in any locomotive, engine, car, rail, track, roadbed, machinery or appliance used by its employés in and about the business of their employment. (2) When such injury shall have been sustained by any officer, agent, servant or employé of such company, while engaged in the line of his duty as such and which such injury...