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

• Decision Date: 04 December 1906
• Citation: 109 N.W. 926,130 Wis. 233
• Parties: VAUNDRY v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

130 Wis. 233

109 N.W. 926

VAUNDRY

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

Supreme Court of Wisconsin.

Dec. 4, 1906.

Appeal from Circuit Court, La Crosse County; J. J. Fruit, Judge.

Action by Albert H. Vaundry, as administrator, against the Chicago & Northwestern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This is an action to recover damages by reason of injuries caused by the alleged negligence of the defendant October 8, 1904, which resulted in the death of the plaintiff's intestate then in the employ of the defendant. Issue being joined and trial had, the court at the close of the plaintiff's testimony granted a nonsuit, and from the judgment entered thereon the plaintiff brings this appeal. The evidence tends to prove that the deceased would have been 20 years of age November 11, 1904; that he lived with his father at North La Crosse, near the Burlington shops; that his father had for many years been employed as a switch light tender for the Burlington Railway Company, and lived about four blocks from the railroad tracks; that the deceased commenced helping his father in such work when he was about 10 years of age, and after that continued to help him in such work until he entered the employ of the defendant as a section man in 1899, since which time he had worked for the defendant as a member of a section crew, working under the direction or control of a section foreman or boss. While his father was working on the railroad, and for 10 or 11 years, he used a railroad velocipede or bicycle, and the deceased was accustomed to ride on it with his father and used it some alone. On the morning in question the section foreman told the crew of which the deceased was a member to go to work about three-fourths of a mile east of Medary, and told the deceased to take the velocipede and go and stick up a slow flag half a mile further east of the place where the men were to be at work, and then to return and work with the men until after dinner, and then, if he (the foreman) did not return after dinner, to patrol the track. The men were to raise the track. loosen the rails, raise it up, and surface the same. The purpose of putting up a slow flag was to caution all trains going west to run slowly where the men were at work. The foreman had gotten the velocipede a day or two before for that purpose, and cautioned the deceased to be careful in using it. Velocipedes were in constant use on railroad tracks. Sometimes, in patrolling the track, the deceased had walked; sometimes he had taken more men and a handcar. Such directions were given at the toolhouse at Medary, 400 or 500 feet from the tower, about 7 o'clock of that morning. The tower is for the purpose of handling the interlocking plant. There was an extra train from the east that morning, but the foreman did not know the fact when he sent the deceased to put up the slow flag; but he knew that there were extra trains on the road very often. Regular trains run on schedule time; extra trains, under orders from the train dispatcher. The slow flag was so ordered for no particular train, but for any train that might come. Such extra trains are quite frequent at times--sometimes three or four a day, then none; but extra trains were of common occurrence. When out working on the road, there was no way for the men to know whether extra trains were coming. Slow flags are put out for extra trains, as well as regular trains, or whether any are known to be coming or not. They are put on the right-hand side of the approaching train, and mean for trainmen to have their trains under control. When trains are coming, men...