Ewig v. Chicago, Milwaukee & St. Paul Railway Co., 167 Wis. 597

Ewig v. Chicago, Milwaukee & St. Paul Railway Co.

167 Wis. 597 | Wis. | 1918

Lead Opinion

The following opinion was filed April 30, 1918:

WiNánow, O. J.

The stipulation that this case is governed by the federal liability law if, at the time of the accident, the deceased was at work as an employee of the defendant, renders it necessary to consider but four questions, viz.: (1) Was there evidence tending to show that the .deceased was in a legal sense at work as an employee of the company at the time of the accident ? (2) Was there any evidence of actionable negligence on the part of the defendant or its employees? (3) Fid the deceased, as matter of law, assume the risk? (4) Was the cause of the accident mere conjecture? These questions will be discussed in their order as stated.

1. It is now quite well settled by federal decisions that “in leaving the carrier’s yard at the close of his day’s work” •the employee is but discharging a duty of his employment, and that, if he was employed in interstate commerce while actually at work, he was, in legal contemplation, so engaged while leaving the yard when the actual work was ended. Erie R. Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556. Our own decisions are in harmony with this principle. Ewald v. C. & N. W. R. Co. 70 Wis. 420, 36 N. W. 12, 591; Kunza v. C. & N. W. R. Co. 140 Wis. 440, 123 N. W. 403. Of course the employee must be leaving by the proper and *603■usual way or at least by a way known to and expressly or tacitly permitted by tbe employer.

We think that there was sufficient evidence in the present case to take this question to the jury. The evidence is plenary that engineers were permitted, at the end of their run, to ride out to the roundhouse yard with the engine dispatcher if they chose, and it is clearly proven that such was the almost uniform practice of the deceased. _ There is much testimony also to the effect that employees used the entire space from the water tank (where the engine started) to the coal sheds (opposite which the body of the deceased was discovered) in going back and forth to and from their work. This space was a network of tracks, and the engine .dispatcher, Vollmer, says: “Men or employees frequently cross the track down even with the coal sheds going towards town, and we have to be careful to avoid accidents, as those men sometimes pass in front of the engines.” Again Vollmer says, after stating that he found some footprints in the snow coming from the west to a point about 350 feet east of the water tank, where the marks of some person being dragged in the snow began: “I don’t know whether those footprints . . . were of Mr. Ewig or not, but that is the short cut through there from the shanties [i. e. the locker and bulletin shanties] towards the Merrill Park depot; that is the customary way.” There is no evidence in the case of any active objection on the part of the defendant to this use of the tracks, and hence there was sufficient evidence to take to the jury the question, whether this was a usual and tacitly permitted way to enter and leave the roundhouse yard. The argument is made that so long a time elapsed between the arrival of Ewig’s engine at the cinder pit and the accident that it must be held that Ewig had stopped at the roundhouse to visit or for other purposes of his own and hence could not be held to be in service, even though leaving the grounds in a usual way. We do not think we can so hold as a matter of law. Ewig’s *604engine reached the Union station in Milwaukee at 9:40 o’clock. When it reached the roundhouse yard does not appear, but naturally it could hardly have reached there until some time after 10. When Vollmer left it Ewig was washing his face. Vollmer went to the roundhouse, looked over his second engine, turned the turntable, backed out, ran onto the turntable and from there onto the tank track, and thinks he got to the tank at about 11:15, probably an hour after leaving Ewig. The accident was a few minutes afterward. We do not see how a court would be justified in saying that Ewig must have stopped to visit or that he had turned aside from his duty. No one knows how long it may have taken him to wash and clean up. Apparently he delivered his work report and time slip to the proper employees at the shanties just south of the cinder pit. The work report, which is in evidence, shows that the engine brake valve was reported as needing to be cleaned out. It may well be that he stopped to talk with or give suggestions to the roundhouse foreman about this. There is absolutely no affirmative evidence to show that he was visiting or idling away his time, and we do not think that the length of time which elapsed necessarily proves the • fact.

2. Was there proof tending to show actionable negligence on the part of the defendant ? On this question it is urged by respondent that the uncontradicted proof shows that the engine bell was ringing, the speed moderate, and the method of handling the engine, namely, by an engineer alone with no fireman, the customary method used in the yard, and hence that no negligence can be found in these respects. This may be at once admitted, but there is one ground of negligence claimed by appellant which is not thus foreclosed, namely, the failure to keep a proper lookout. It appears that the engine was a very large one, with a high tender piled full of coal, and that when the engineer sat in the window seat on the right hand (in this case the north side) *605be could not see tbe center of tbe track in tbe direction in wbicb be was moving for a distance of 94 feet and could not see tbe south rail for a distance of 140 feet. It goes without saying that be could not see a man approaching tbe track from tbe south for a much greater distance. By Vollmer’s own testimony (and this testimony is tbe only testimony on tbe subject) it appears that after looking over bis engine at tbe water tank be got back on tbe engine, put in fourteen or fifteen shovels of coal, got up on tbe window seat, started tbe bell ringing, and then started tbe engine. His testimony justifies tbe conclusion that be paid no attention to tbe south side of tbe engine or to tbe region south of tbe track, from tbe time be got into tbe engine after looking it over. How long a time elapsed between tbe looking over of tbe engine and tbe starting of it does not appear, but it must have been several minutes. Tbe jury might well conclude that for a number of minutes before tbe engine started and during tbe whole 800 feet from tbe water tank to tbe coal shed tbe engineer never looked at tbe south side of tbe track except so far as be was able to see it at a distance of 140 feet east of bis engine when sitting on bis window seat on tbe north side. It might perhaps be that, if this territory through wbicb be was backing was a territory not generally used by employees in passing back and forth, negligence could not be predicated on failure to take an observation on tbe south side of tbe engine just before starting and at least occasionally thereafter; but this was a case where tbe evidence tended to show that tbe whole territory through wbicb tbe engine was running was commonly used by employees of tbe company and others, apparently to tbe knowledge of and without objection by tbe defendant. Under these circumstances we reach tbe conclusion that tbe question whether there was negligence by Vollmer in failing to keep 'a proper lookout on tbe south side of tbe engine before starting and during tbe trip was properly a question for tbe jury.

*606There was, of course, ample evidence to justify a finding that Ewig was guilty of contributory negligence, but contributory negligence .does not defeat tbe action under tbe federal law, but simply requires that tbe proportion of sucb negligence be ascertained and tbe damages diminished to that extent. See act as printed in Second Employers’ Liability Cases, 223 U. S. 1, 6, 32 Sup. Ct. 169.

3. Upon tbe question of assumption of risk little need be said. It is true that assumption of risk still remains a defense under tbe federal act, but, as has been said by this-court, that does not include risk of unexpected negligent acts-of co-employees. Graber v. D., S. S. & A. R. Co. 159 Wis. 414, 150 N. W. 489. Under tbe evidence in this case there was room for tbe conclusion that tbe failure of Vollmer to keep a lookout on tbe south side was sucb a negligent act.

4. We cannot say that -the cause of tbe accident is necessarily mere conjecture. Tbe evidence tends to show that tbe deceased was struck by tbe engine at a point where there was much travel to and fro and where be would very naturally be crossing tbe track on bis way to bis brother’s bouse on Twenty-eighth street. We intimate no opinion as to tbe fact, but simply bold that a verdict to that effect could not be said to have no evidence in its support.

By the Oourt. — -Judgment reversed, and action remanded for a new trial.

Rehearing

Tbe respondent moved for a rehearing, and tbe following opinion was filed July 8, 1918:

Pee Oueiam.

Upon respondent’s motion for a rehearing attention is called to tbe case of Jacoby v. C., M. & St. P. R. Co. 165 Wis. 610, 161 N. W. 751, 164 N. W. 88, in which it was held as matter of law that a railroad employee leaving bis master’s premises after completing bis duties was not engaged in interstate commerce, and it is claimed that tbe doctrine there laid down should be applied to this case.

*607Whether it would make any difference with the result is unnecessary to be considered. Upon the trial the parties agreed that, if the deceased was an employee at the time of the accident, the action was governed by the federal liability act, and the case was tried on that basis. By taking this position it is clear that the respondent effectually waived the objection that the case was governed by the state law and consented that it be tried as a case governed by the federal law. It was entirely competent for the respondent to do this. Leora v. M., St. P. & S. S. M. R. Co. 156 Wis. 386, 146 N. W. 520. It is not now necessary to consider what will be the effect should this concession not be made upon the next trial of the action.

Motion denied, with $25 costs.