Zahn v. Milwaukee & S. Ry. Co.

• Decision Date: 01 April 1902
• Citation: Zahn v. Milwaukee & S. Ry. Co., 114 Wis. 38, 89 N.W. 889 (Wis. 1902)
• Court: Wisconsin Supreme Court
• Parties: ZAHN v. MILWAUKEE & S. RY. CO.

114 Wis. 38

89 N.W. 889

ZAHN

v.MILWAUKEE & S. RY. CO.

Supreme Court of Wisconsin.

April 1, 1902.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Action by Albert Zahn against the Milwaukee & Superior Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Action under section 1816, Rev. St. 1898, to recover damages for personal injuries claimed to have been sustained by plaintiff while in the discharge of his duties as brakeman for defendant. The accident occurred a little after noon on November 3, 1899. The plaintiff was engaged in coupling cars on a side track in the yard at North Lake station. The negligence alleged is that the fireman, who was in charge of the engine while the engineer was at dinner, backed the engine, with several cars attached, without any signal from plaintiff, and without any notice or signal to plaintiff, suddenly against a car that plaintiff was preparing with coupling links, and caught and crushed his hand. A motion for a nonsuit at the close of plaintiff's testimony was denied, as was also a motion to direct a verdict for defendant at the close of the testimony. Both rulings were duly excepted to. A special verdict was submitted, in which the jury found substantially as follows: (1) That plaintiff was injured while in defendant's employment; (2) that he was injured by having his right hand caught between the bumpers of the cars; (3) that the fireman was in charge of the engine; (4) that the engine and cars attached to it were pushed back against the car the plaintiff was preparing for coupling without any signal from plaintiff; (5) that the engine and cars were so pushed back without any notice to plaintiff; (6) that they were pushed back without any knowledge on the part of plaintiff; (7) that plaintiff was engaged in the capacity of brakeman; (8) that plaintiff was not then employed in the capacity of conductor; (9) that the plaintiff had no knowledge of the absence of the engineer; (10) that plaintiff did not notify the fireman he was going between the cars; (11) that plaintiff did not see the approaching car in time to have removed his hand from between the two drawbars; (11 1/2) that plaintiff did not hear the approaching engine and cars in time to have removed his hand; (12) that plaintiff was not injured in consequence of a movement of the cars in the usual and ordinary manner; (13) that the condition of the coupling apparatus was not the sole and proximate cause of plaintiff's injury; (14) that plaintiff was injured by the negligence of the fireman in charge of the engine; (14 1/2) that a person of ordinary care, under the circumstances, should not have known that the engineer was absent from the engine; (15) that plaintiff was not guilty of any want of ordinary care which contributed directly to produce the injury; (16) that the defendant's employé was guilty of negligence which was the natural probable cause of the accident, and which accident ought to have been foreseen by a person of ordinary care and prudence; (17) damages, $2,500. Defendant submitted a motion “for an order setting aside the answer to questions numbered, respectively, 12, 14, 14 1/2, 15, and 16, in the special verdict rendered by the jury herein, for the reason that the same are unsupported by the evidence, and are against the uncontradicted evidence, and changing and perfecting the said special verdict in accordance with the uncontradicted evidence by answering question number twelve ‘Yes,’ question number fourteen ‘No,’ question number fourteen and one-half ‘Yes,’ question number fifteen ‘Yes,’ and question number sixteen ‘No,’ and granting judgment in favor of the defendant and against the plaintiff on the said special verdict as so changed and perfected, and upon the uncontradicted evidence.” This motion was denied, and plaintiff's motion for judgment was granted. Defendant's appeal is from the judgment.Spooner & Rosecrantz, for appellant.

Ryan, Merton & Newbury, for respondent.

BARDEEN, J. (after stating the facts).

The plaintiff argues that, inasmuch as there was no motion for a new trial, the only question to be considered is whether there is any evidence to support the findings challenged. So far as relates to a decision of the question raised by the denial of the motion for a nonsuit, many of the cases say that, in absence of a motion for a new trial, the court will not review the evidence. The rule in this regard is sufficiently stated in Guetzkow v. Smith, 105 Wis. 94, 80 N. W. 1109. It rests upon the fact that evidence may have been admitted before the close of the trial sufficient to warrant a submission of the case to the jury. But when there has been a motion for a direction of a verdict, with due exception preserved in the record, the rule is different. In such a situation this court will review the testimony in order to determine whether the...