Hardt v. Chicago, Milwaukee & St. Paul Railway Co., 130 Wis. 512

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

130 Wis. 512 | Wis. | 1907

Dodge, J.

1. The first assignment of error is predicated upon alleged'insufficiency of the notice of injury served upon the defendant within one year after the event. That notice, addressed to the defendant, declared that plaintiff demanded satisfaction from the defendant for injuries received by him at the place described, in the performance of his duties as an employee, and that he was injured by a handcar rolling upon *517and over him down the embankment. The defect, and the •only defect, urged by appellant’s brief in this notice is that it fails to state, in terms, that the plaintiff, claimed that the damage was caused by the defendant company. A complete answer to this criticism is that the statute does not require that the notice shall so state. The matters required to be stated by sec. 4222, Stats. 1898, in the notice are: The time and place, a brief description of the injuries, the manner in which they were received and the grounds upon which claim is made, and that satisfaction is claimed of the person or corporation notified. True, the statute does require that the notice shall be served “upon the person or corporation by whom it is claimed such damages were caused.” But it was so served, and obviously, in the contemplation of the statute, the service of such notice sufficiently informs the defendant of the claim that the damages were caused by it. It was suggested upon oral argument that there was no specific statement of the grounds upon which the claim was made, in that the notice does not, in terms, declare that the handcar was precipitated onto the plaintiff by negligence of the defendant. This difficulty, however, is met by the further provision of the statute that the notice shall not be insufficient or invalid because of any ináceuraey or failure in stating the •grounds on which the claim is made, provided it shall appear that there was no intention on the part of the person giving the notice to mislead the other party, and that such party was not in fact misled thereby. It was amply proved that full disclosure and explanation were made to the defendant’s special agent within a very few days after the accident, so that defendant could not have been misled by any such omission in the written notice, nor could any intent to mislead have been presumed. May v. C. & N. W. R. Co. 102 Wis. 673, 79 N. W. 31; Collins v. Janesville, 107 Wis. 436, 83 N. W. 695; Garske v. Ridgeville, 123 Wis. 503, 102 N. W. 22.

*5182. Great stress of argument is addressed by appellant to tbe proposition that the court should have directed a verdict for the defendant by reason of incredibility of plaintiff’s testimony that the conduct of the foreman, in lifting both rear wheels at once clear of the rail so as to precipitate the whole weight of the car upon those standing in front, was unusual, and that there was a safer manner customarily adopted in situations like that here involved, and because it is conclusively established that the method adopted was the usual and customary one, to plaintiff’s knowledge; that it was the only possible method and involved nothing of negligence on the part of the foreman; and hence that any risk therefrom was fully known to plaintiff and assumed by him, and he was guilty of conti’ibutory negligence in placing himself in a position where injury would be likely from that manner of doing the work. While, perhaps, it might be thought that there is a preponderance of evidence in favor of the custoinariness of this method of removing the rear end of the handcar, resulting from the-testimony of two witnesses generally to that’ effect, and an apparent declaration to the same effect by plaintiff in examination under sec. 4096, Stats. 1898, nevertheless the plaintiff, with much particularity and under a vigorous cross-examination in the presence of the jury, testified distinctly to another method which, obviously, would lessen the danger of such an injury as the plaintiff suffered. lie .also, being a German with very imperfect command of the English language, explained his understanding or misunderstanding of the questions put to him in the preliminary examination. His manner, intelligence, and fairness were before the jury, as they cannot be before us, and they seem to have believed him; and the trial court, in ruling upon the motion for a new trial, has-declared his opinion against the incredibility of such testimony. The rule is thoroughly well established in this state that, under such circumstances of mere conflict of credible testimony of witnesses, this court should not and will not *519overrule tbe conclusions of tbe jury and tbe trial court. Beyer v. St. Paul F. & M. Ins. Co. 112 Wis. 138, 88 N. W. 57; Bannon v. Ins. Co. of N. A. 115 Wis. 250, 256, 91 N. W. 666; Meyer v. Home Ins. Co. 127 Wis. 293, 297, 106 N. W. 1087; Peat v. C., & St. P. R. Co. 128 Wis. 86, 107 N. W. 355.

But it is declared that tbe method of removing tbe car described by tbe plaintiff is physically impossible. We confess to utter inability to discover any physical obstacle thereto. With tbe car at right angles to tbe track and tbe rear wheels resting against tbe inner side of tbe south rail and tbe forward part of tbe handcar tending downward toward a declivity, whether tbe men bolding tbe front-end were standing over tbe brow of that declivity or upon tbe gentler slope immediately adjoining tbe track we can see no impossibility in tbe lifting first of one corner of tbe rear end of tbe car, tbe swinging of tbe forward end so as to carry that wheel over the-track, and then tbe lifting of tbe remaining corner and shifting tbe rear end of tbe car sidewise tbe few inches necessary to carry tbe last wheel over tbe track. Tbe adoption of such a method, instead of appearing to us incredible or even improbable, seems to us supported by tbe probabilities. A car resting upon its wheels and facing at right angles to tbe right of way is, of course, much more likely to escape from tbe control of tbe three men in charge of it and to run down thé embankment than if it stand more nearly parallel to tbe track so that tbe wheels must scrape instead of turn to enable it to descend. After a most careful consideration of tbe contention-of appellant’s counsel we cannot agree that a position is presented rendering incredible tbe testimony of tbe plaintiff as to tbe manner in which handcars were usually removed from tracks at tbe top of a fill or embankment like this. If that testimony was believed by tbe jury there is no further difficulty in justifying their conclusion that a departure from custom by suddenly lifting tbe rear end and freeing tbe car *520from the obstacle to its descent offered by tbe rail was conduct which, a reasonably prudent man might well anticipate would cause injury to those necessarily standing at the forward end of the car, and which might, therefore, be considered negligence. Nor, in such a case, can we say, as matter of law, that one who stands in front of a handcar, as did the plaintiff, to control the front end of it, is guilty of negligence, when he has no reason to anticipate that its whole weight will be so cast downward and against him by such unusual conduct as that of which the foreman was guilty in this case. Nor, of course, can it be said, as matter of law, that he assumes the risk of that which does not usually take place, and which, therefore, he has no reason to expect.

3. A further contention closely connected with the last is that the lifting of the rear end of the car was shown by un-contradicted evidence not to have been the proximate cause of plaintiff’s injury, but that the slippery condition of the ground resulting from a white frost was such. While the plaintiff states that, but for the slipperiness, he and his companion could probably have held the car notwithstanding the conduct of the foreman, yet that it was the sudden pressure against him resulting from such conduct which caused him to slip. There could hardly be a plainer case of an existing condition in face of which acts of carelessness were likely to bp injurious so that those acts should be held to be the legal cause rather than the slippery condition of the ground, which constituted merely one of the surrounding circumstances and conditions. Yess v. Chicago B. Co. 124 Wis. 406, 102 N. W. 932; Winchel v. Goodyear, 126 Wis. 271, 277, 280, 105 N. W. 824; Stefanowski v. Chain Belt Co. 129 Wis. 484, 109 N. W. 532.

4. Several of the instructions given to the jury were excepted to, and they are assigned as error, but solely on the ground that they assumed that there was evidence upon which the jury might find the facts in accordance with plaintiff’s *521testimony. Since we bare already concluded that they might have done so, there was no error upon that ground in giving the instructions.

Error is assigned upon an instruction that the burden of proof was upon the defendant to establish contributory negligence. It is contended that this is incorrect for the reason that it might be established by plaintiff’s own evidence. The subject was so-lucidly explained, and appellant’s position overruled, in Schrunk v. St. Joseph, 120 Wis. 223, 230, 97 N. W. 946, as to render any discussion here unnecessary. The rule given by the court was correct.

Error is also assigned because the court declined to give certain instructions at the request of the defendant. As, however, the request was a mere oral one, and did not even undertake to formulate the instruction desired, no error can be predicated merely upon its refusal. Hacker v. Heiney, 111 Wis. 313, 87 N. W. 249; Taylor v. Seil, 120 Wis. 32, 97 N. W. 498; Cupps v. State, 120 Wis. 504, 527, 97 N. W. 210, 98 N. W. 546. Further, the matter of the request that the burden of proof rested on plaintiff was fairly covered by the instruction given. The court instructed the jury as to each of the questions where an affirmative answer would be favorable to the plaintiff that, in order to give such affirmative answer, they must be satisfied by a preponderance of the evidence, which certainly carried to the jury the idea that they could not decide against the defendant without being so satisfied. That is the burden of proof. Bowe v. Gage, 127 Wis. 245, 251, 106 N. W. 1074; Anderson v. Chicago B. Co. 127 Wis. 273, 280, 106 N. W. 1077.

We find nothing of error nor reason to believe any prejudice to the defendant, in the fact that the court, after the jury had been deliberating for some time, recalled them and asked them if they could be aided in their deliberations either by further instructions or by the reading of any of the evidence, or that, before leaving the courthouse for supper, he directed *522the officer in charge to inquire whether the jury were likely to agree within the next twenty minutes, to which they responded in the negative. The court has full authority in the-exercise of sound discretion to offer aid to the jury by way of' further instruction or explanation, and he certainly can, without impropriety, make such an inquiry of them as was done-in this case. In such acts there is by no means necessarily any implication of criticism, as suggested by appellant’s counsel, nor of urgency calculated to divert the jury from that deliberation which they may think necessary to the solution of' the questions submitted to them. Douglass v. State, 4 Wis. 387, 393; Odette v. State, 90 Wis. 258, 62 N. W. 1054; Secor v. State, 118 Wis. 621, 95 N. W. 942.

5. Perhaps the most important question presented — raised-* by demurrer ore tenus — is whether the plaintiff’s case falls-within the exception to the common-law fellow-servant doctrine declared by sec. 1816, Stats. 1898, as amended by ch. 448, Laws of 1903, “provided such injury shall arise from a-risk or hazard peculiar to the operation of railroads.” This-phrase is apparently new in legislation. It is hardly accurate, since injuries do not arise from hazards or risks, but frorn acts or events. Perhaps the idea would be more clearly expressed by describing the injury or the event causing it as-mthm such peculiar risks- or hazards. However, we think the general meaning of the phrase reasonably clear. Before-the passage of the act of 1903 there had been much debated' both the constitutionality and the justice of placing employees of railroads upon different footing from other workmen not distinguishable from them either by the character of their employment or the perils of injury surrounding it. - It was argued that it was neither just nor proper to distinguish one-riveting a boiler in a shop belonging to a railroad company from one engaged in similar work in the shop of a manufacturer of threshing machines or steam dredges; c?r one felling-timber for a railway company on its right of way from those-*523performing like work on adjoining land for a private owner. The supreme court of Minnesota, in Lavallee v. St. P., M. & M. R. Co. 40 Minn. 249, 41 N. W. 974, bad declared tbe unconstitutionality of suck discrimination. In tbat case, however, it was recognized that some employees of railroads are “exposed to peculiar hazards attending that business” of operating railroads legitimately distinguishing them from workmen in' other employments. Some of those peculiarities were attempted to be described by the writer in his dissenting opinion in Medberry v. C., M. & St. P. R. Co. 106 Wis. 191, 81 N. W. 659. Accordingly, the Minnesota court imported into' their statute, by construction, a limitation to employees exposed to such peculiar hazards and whose injuries resulted from acts or events within such risks. In Iowa we find a statute exempting injured employees from the fellow-servant doctrine when their injuries result from wrongs of co-employees “in any manner connected with the use and operation of the railway.” It will be noticed that in both these statutes, after the judicial qualification in Minnesota, the expression “operation of the railroad” occurs as in our own, and, accordingly, their decisions are cited to us as persuasive as to the meaning of that phrase; it being contended that the removal of this handcar by the sectionmen could not fall within “operation” of the railroad. In Iowa-the weight of decision is-against the view that mere repair of roadbed or track is operation. Dunn v. C., R. I. & P. R. Co. (Iowa) 107 N. W. 616. In Minnesota, apparently a contrary view prevails. Nichols v. C., M. & St. P. R. Co. 60 Minn. 319, 62 N. W. 386; Blomquist v. G. N. R. Co. 65 Minn. 69, 67 N. W. 804. In apparent concurrence with which are Callahan v. St. L. M. B. T. R. Co. 170 Mo. 473, 71 S. W. 208; Stubbs v. O., K. C. & E. R. Co. 85 Mo. App. 192, and Chicago, K. & W. R. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585. What we should conclude as between such conflicting views may well be left until some concrete case requires us to decide. The present *524one does not involve it, for, while the ultimate purpose of plaintiff and Ms fellows was to repair the roadbed, they were, .at the'moment of injury, engaged in tbe transportation of themselves, their handcar, tools, and materials from a station on the railway to the place of their proposed labor. The fact that they had reached the end of their trip and were in the act of alighting does not preclude the view that they were still in course of such transportation, which could not be considered terminated until destination was completely reached. The removal of the handcar, tools, and materials to their intended place beside the track was clearly part of their transportation. The protection accorded one “riding on an en;gine” extends to him while in the act of alighting. Gaffney v. C., M. & St. P. R. Co. 127 Wis. 113, 120, 106 N. W. 810. We can entertain no doubt that the transportation of men and materials over its tracks is part of the operation of a railroad; .and none the less so because the vehicle is a handcar. Such view seems to have the sanction of all decided cases speaking directly on the subject. Frandsen v. C., R. I. & P. R. Co. 36 Iowa, 372; Larson v. Ill. Cent. R. Co. 91 Iowa, 81, 58 N. W. 1076; Thompson v. Chappell, 91 Mo. App. 297; Chicago, M. & St. P. R. Co. v. Artery, 137 U. S. 507, 11 Sup. Ct. 129; Tex. & P. R. Co. v. Hervey (Tex. Civ. App.) 89 S. W. 1095; Houston & T. C. R. Co. v. Jennings, 36 Tex. Civ. App. 375, 81 S. W. 822. It also seems plain that the. risk of injury attending the hurried removal of the handcar, •at such an inconvenient and dangerous place as the crest of a steep incline, was peculiar to the railroad business. The likelihood of passing trains rendered such act imperative whatever the difficulties or dangers, as it would not ordinarily be in any other employment or business. We conclude the trial court was right in refusing to rule that plaintiff was outside the protection afforded employees of railroads by sec. 1816, Stats. 1898, as amended.

By the Court. — Judgment affirmed.