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

• Decision Date: 21 December 1909
• Citation: 141 Wis. 423,123 N.W. 904
• Court: Wisconsin Supreme Court
• Parties: ZERATSKY v. CHICAGO, M. & ST. P. RY. CO.

141 Wis. 423

123 N.W. 904

ZERATSKY

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

Supreme Court of Wisconsin.

Dec. 7, 1909.

Dissenting Opinion, Dec. 21, 1909.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by John R. Zeratsky against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

Plaintiff was the rear brakeman on the defendant's extra freight train, consisting of 54 cars, a caboose, and an engine, which left Green Bay, Wis., September 28, 1907, at 10:10 p. m., bound for Milwaukee. It had a full crew of trainmen, consisting of the engineer, fireman, conductor and two brakemen. The train proceeded south through De Pere at 11:05 p. m., and through Askeaton, and, when about 1 1/4 miles from Hilbert Junction, the engine ran out of water, and was unable to pull the train to Hilbert Junction. The plaintiff was in the caboose when the train stopped. The engineer, fireman, conductor, and other brakeman, without informing plaintiff of their intention, cut the engine from the train, and proceeded with it to Hilbert Junction to get a supply of water without giving a signal to the plaintiff, as required by the following rule of the company: “Rule 26. The one long, two short, and one long blast of the whistle thus, ______, --, --, _______, will be given by engineers when they find it necessary to stop between stations and to notify conductor, thus enabling him to drop off and send back a flagman.” As soon as plaintiff observed that the train had stopped, he left the caboose, and went forward to about the middle of the train to ascertain the cause of the stopping. He there observed that the engine had been cut off, and had left with the rest of the crew, and he then started back. The plaintiff stated that, while going forward and coming back, he observed the odor of a hot box, and he tapped the boxes to find the one, and immediately upon his return he went into the caboose to get his dope bucket to fix it. He testified that he took no more time than was necessary to make this trip. “Special rules for train and engine men” of the defendant contains the following: “Rule B4. Conductors and brakemen must examine their trains, whenever there is an opportunity to do so, looking particularly for hot boxes and defective draft and brake rigging.” Meanwhile the defendant's regular passenger train bound for Milwaukee on the same line as that on which the freight was proceeding had arrived at Green Bay at about 12:30 a. m., and had left a few minutes later. At De Pere it was permitted to enter the block which was occupied by the freight train. One of the rules of the defendant was as follows: “Rule 3. Trains must not pass a block signal at danger except under authority of a clearance card form 168.” The conductor and engineer were given permissive and clearance cards under the following rules, which trainmen are supposed to know and obey:

“Rule 4. When the block signal stands at danger, the operator issues a clearance card which states that he has no orders or no further orders for the train named. The train receiving clearance card may proceed if its time table rates or special orders permit it to do so.

Rule 5. The permissive card is used when trains are permitted to pass a block signal at danger and enter the section under notice that the preceding train has cleared the same section. This is to be used only by direction of the train despatcher.

Rule 6. When a train is to proceed under a permissive card, the conductor and engineer must each have a card of the following form properly filled out and signed by the train despatcher.”

“Rule 10. Trains running under the authority of a permissive card or caution signal must run with great care and at reduced speed to ensure against collisions with trains ahead.”

A special caution order was issued to the conductor and engineer in these words: “Extra east, Dietzler conductor, left De Pere at 11:42 p. m. and has not yet arrived at Hilbert Junction. Proceed cautiously, expecting to find them on main line at any point without flag protection.” The passenger proceeded south--or east as it is called in railroad parlance--and, when running at a speed of about 30 miles per hour, collided with the rear end of the freight train which had stopped on the main track a mile and one-quarter from Hilbert Junction. The freight train crew had not been specifically informed that the passenger train had been permitted to enter the same block or section of track as was occupied by the freight train. The plaintiff, who was in the caboose of the freight train, was seriously injured by the collision. The fireman of the passenger train was killed, and the engineer was injured. There was a straight and unobstructed stretch of track back of the caboose of 3,000 feet. Whether or not the red lights were burning on the caboose was a disputed question on the trial.

The following rules of the defendant regarding the operation of trains were in force at the time of the collision:

“Rule 62. When a train stops between stations, a flagman must immediately go back with proper signals to stop any trains that may be following. Not a moment must be lost in inquiry as to the cause of stoppage or its probable duration. The flagman must go back instantly and shall take not less than three torpedoes, also a red flag by day and a red and white light by night, and shall place one torpedo on the rail on the engineer's side when 3/4 of a mile (23 telegraph poles) distant from the rear of train, and at a further distance of 1/4 mile (eight telegraph poles), he shall place two torpedoes on the rail on the engineer's side. He will then, selecting a place where the view is long and clear, remain until the train is stopped or he is recalled. Returning he will leave two torpedoes at the most distant point from his train and take up the rest. Whenever it becomes necessary, the forward end of the train shall be protected in the same manner.”

“Rule 50. Train and engine men will be held equally responsible for violation of any of the rules governing the safety of trains, and they must take every precaution for the protection of trains, even if not provided for by the rule.”

“Rule 26. Conductors will be held responsible for the faithful performance of the duty required on the part of their brakemen.”

“Rule A58. Trains moving under permissive card will be held responsible for an accident in the nature of colliding with the train occupying the section which required movement under the permissive card. Engineers will not be censured for moving at a speed to insure against accident.”

The defendant alleges that the collision was caused by the failure of the passenger engineer to observe its train orders and the rules and regulations known to him, together with the contributory negligence of the plaintiff and his violation of the defendant's rules and regulations.

At the close of the testimony, the court, on defendant's motion, directed a verdict for the defendant, and judgment was entered upon the verdict so directed.

This is an appeal from the judgment.

Marshall, J., dissenting.

Wigman, Martin & Martin, for appellant.

Greene, Fairchild, North & Parker, for respondent.

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

The right of the plaintiff to recover in this action is governed by the provisions of chapter 254, p. 495, Laws 1907, which provides that “every railroad company shall be liable for damages for all injuries * * * sustained by any of its employés, * * * when such injury * * * shall have been sustained by any * * * employé of such company, while engaged in the line of his duty as such and which such injury shall have been caused in whole or in greater part by the * * * negligence of any other officer, agent, servant or employé of such company * * * in the discharge of, or * * * by reason of failure to discharge his duties as such.” It is also provided that the court shall submit to the jury the questions whether any negligence attributable to the company “directly contributed to the injury,” and, if such negligence is found, “whether the person injured was guilty of any negligence which directly contributed to the injury,” and, if the jury shall find the injured person guilty of contributory negligence, the court shall then submit to them the inquiry “whether the negligence of the party so injured was slighter or greater as a contributing cause to the injury than that of the company.” It is further provided: “In all cases where the jury shall find that the negligence of the company * * * was greater than the negligence of the employé so injured, and contributing in a greater degree to such injury, then the plaintiff shall be entitled to recover. * * *” The trial court directed a verdict for the defendant upon the ground that the evidence in this case showed as matter of law that the company's negligence, which concurred with that of the plaintiff to produce his injuries, was not greater and contributed in no greater degree to such injuries than the plaintiff's contributory negligence.

In Kiley v. Chicago, M. & St. P. R. Co., 138 Wis. 215, 119 N. W. 309, 120 N. W. 756, we had occasion to declare that these provisions of the law did not affect the judicial power of the court to determine whether the evidence presented tended to show negligence attributable to the company and contributory negligence of the person injured, and, if the evidence tended to show such negligence, it was for the jury to determine therefrom whether or not in fact such negligence or contributory negligence existed. It was also decided that the provisions declaring that the contributory negligence of the person should be no bar to his recovery in cases wherein the jury should find that the negligence attributable to the company “was greater than the negligence of the employé so injured, and contributing in a greater degree to such injury” were...