Toner v. Chi., M. & St. P. Ry. Co.
| Decision Date | 22 June 1887 |
| Citation | 69 Wis. 188,33 N.W. 433 |
| Parties | TONER, BY HIS GUARDIAN AD LITEM, v. CHICAGO, M. & ST. P. RY. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Milwaukee county court.
Motion for a rehearing. See 31 N. W. Rep. 104.
*434Dey & Friend and W. C. Williams, ( Gerrit T. Thorn, of counsel,) for respondent, Toner.
John W. Cary, ( H. H. Field, of counsel,) for appellant, Chicago, M. & St. P. Ry. Co.
By the special verdict the station agent was found to have been negligent. The evidence in support of such findings, if any, is very slight. Assuming it to have been sufficient, still a majority of the court are clearly of the opinion that, under the rule long ago established, such negligence must be regarded as that of a co-employe. The facts bring the case squarely within the rule sanctioned in Cooper v. Milwaukee & P. du C. Ry. Co., 23 Wis. 668. In that case the freight train was running west from Milton to Edgerton. The place of the injury was some 30 or 40 rods west of the bridge across Rock river. The negligence charged and proved consisted in the fact that workmen engaged in repairing the track at that point had taken up three rails at once, without giving sufficient notice to those in charge of the approaching train. The negligence was conceded, but the plaintiff was nonsuited on the ground that such trackmen were co-employes with the injured brakeman on the train; and the judgment was affirmed in an opinion by DIXON, C. J. That case was expressly sanctioned by RYAN, C. J., in Anderson v. Chicago, M. & St. P. Ry. Co., 37 Wis. 322; ORTON, J., in Howland v. Milwaukee, L. S. & W. Ry. Co., 54 Wis. 230, 11 N. W. Rep. 529; TAYLOR, J., in Heine v. Chicago & N. W. Ry. Co., 58 Wis. 529, 17 N. W. Rep. 420; and Peschel v. Chicago, M. & St. P. Ry. Co., 62 Wis. 349, 21 N. W. Rep. 269. To the same effect, Walker v. Boston & M. Ry. Co., 128 Mass. 8;Henry v. Lake Shore & M. S. Ry. Co., 49 Mich. 495, 13 N. W. Rep. 832;Collins v. St. Paul & S. C. Ry. Co., 30 Minn. 31, 14 N. W. Rep. 60;Randall v. Baltimore & O. Ry. Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322. To constitute fellow-servants, within the meaning of these cases, it is not necessary that the negligent workman causing the injury and the one injured should both be engaged in the very same particular work. It is sufficient if they are employed by the same master, under the same control, and performing duties and services for the same general purpose. Id.; Lehigh Val. Coal Co. v. Jones, 86 Pa. St. 432; New York, L. E. & W. Ry. Co. v. Bell, 4 Atl. Rep. 50.
Here, the station agent was competent. He was expressly charged by the rules of the company with the duty of being out at the station, and knowing that everything was right, when trains were passing, and to keep the main track clear and unobstructed for the passage of trains, or to give timely notice of such obstruction to those in charge of approaching trains. Similar duties were imposed upon the trackmen in Cooper v....
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Indianapolis Traction & Terminal Co. v. Mathews
...37 S. E. 360;Roland v. Tift, 131 Ga. 683, 63 S. E. 133, 20 L. R. A. (N. S.) 354;Toner v. Chicago, etc., R. Co., 69 Wis. 188, 31 N. W. 104, 33 N. W. 433;Adams v. Iron Cliffs Co., 78 Mich. 271, 272, 276, 288-290, 44 N. W. 270, 18 Am. St. Rep. 441;New York, etc., R. Co. v. Bell, 112 Pa. 400, 4......
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