Hibbard v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

96 Wis. 443 | Wis. | 1897

Winslow, J.

The' plaintiff recovered a judgment for personal injuries received by him under the following circumstances: He was employed as a warehouseman by the defendant at its station- at New Richmond, and óne of his duties was to seal the doors of all freight cars which were loaded at New Richmond, before they left the station. On the day of the accident a car had been loaded with flour at a mill about a quarter of a mile from the freight depot at New Richmond. A freight train came in, and the engine uncoupled from the train and brought this car to the station, preparatory to placing it in the train. While the engine and car were standing still upon the house track for á moment, the plaintiff went between the car and the tender of the engine, and was climbing up to seal the door in the end of the freight car, when the engine was suddenly moved back, and the plaintiff’s foot was caught under the wheel of the tender and partly torn off.

Plainly, if his injury was the result of the negligence of any third person, it was the negligence of the engineer or fireman of the engine, both of whom were the plaintiff’s fellow-servants. Ewald v. C. & N. W. R. Co. 70 Wis. 420. If, therefore, there is any liability on the part of the railway company, it must be under tbe terms of ch. 220, Law’s of 1893. By this act a railway employee who is engaged in operating, running, riding upon, or switching” trains or cars may recover for injuries caused by the negligence of another employee in the performance of his duties. That the plaintiff was not at the time of his injury engaged in “ operating, running, riding upon, or switching ” a car is so plain that argument of the question is unnecessary. Sealing the door of a car, plainly, is not Operating or running it. This view is in harmony with the previous decisions of this court construing this statute. Smith v. C., M. & St. P. R. Co. 91 Wis. 503; Ean v. C., M. & St. P. R. Co. 95 Wis. 69. The consideration of decisions under radically different statutes :in other states would not be in any degree helpful. These views are fatal to the recovery, and render the consideration of other questions unnecessary.

By the Court.— Judgment reversed, and cause remanded for a new trial.