216 Wis. 405 | Wis. | 1934
The following opinion was filed October 9, 1934:
In this action the plaintiff seeks to recover damages for the death of Erland P. Lind, contending that it was caused by the negligence of the defendant. The action is brought under the Federal Employers’ Liability Act, § 1, 35 U. S. Stats. 65, 45 USCA, § 51, which, so far as material, provides:
“Every common carrier by railroad . .. . shall be liable in damages to any person suffering injury while he is employed by such carrier, ... or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; . . . for such injury or death respiting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.”
It is conceded that the deceased, at the time of his' death, was engaged in interstate commerce, and that this controversy is ruled by the established law of the federal courts. Western & A. R. Co. v. Hughes, 278 U. S. 496, 49 Sup. Ct. 231; Atchison, T. & Santa Fe R. Co. v. Saxon, 284 U. S. 458, 52 Sup. Ct. 229. It has been repeatedly held “that where suit is brought against a railroad for injuries to an employee resulting from its negligence, such negligence is an affirmative fact which plaintiff must establish. The Nitro-glycerine Case, 15 Wall. 524, 536, 537; Patton v. Texas & Pacific R. Co. 179 U. S. 658, 663, 21 Sup. Ct. 275; Looney v. Metropolitan R. Co. 200 U. S. 480, 487, 26 Sup. Ct. 303; Southern R. Co. v. Bennett, 233 U. S. 80, 85, 34 Sup. Ct. 566. In proceedings brought under the’ Federal Employers’ Lia
Before discussing the applicable principles of law, the facts will be stated. On August 27, 1928, the deceased was employed by the defendant as a flagman or watchman at its Fifth street crossing in the city of Milwaukee. Fifth street runs north and south and crosses several of defendant’s tracks a short distance to the west of its passenger station. The general direction of defendant’s tracks at the place in question is northeasterly and southwesterly. Fifth street also intersects Clybourn street, which runs east and west across defendant’s tracks at the Fifth street crossing. At the time „of the accident gates were maintained and operated by the company on the streets mentioned. Lind’s duties were those of the ordinary crossing flagman or watchman; that is to say, to warn persons who attempted to cross the tracks after the gates were down, and to prevent persons, automobiles, or other vehicles from going across the tracks in front of moving trains or engines. He did not operate the gates. That duty was performed by another employee who operated them from a tower. A regular Chicago-Milwaukee passenger train arrived at defendant’s station at 6:55 o’clock p. m. on time. Shortly after it pulled into the station the depot master uncoupled the locomotive and two express cars from the rest of the train. The locomotive and the two cars were then moved forward along a main track and over the Fifth street crossing to a point beyond a switch which permitted the ex
The deceased’s body was evidently dragged from where he was struck to the turntable. No one saw the accident. No one knows just what the flagman was doing when he was struck. At the time the locomotive was moved along the turntable track it was still light, and from the place where the flagman was probably last observed nothing existed to obstruct his view of the approaching locomotive. It is: undisputed that the bell of the locomotive was ringing. During all of the movements of the locomotive just described the engineer occupied his seat on the right (north) side of the locomotive. He maintained a constant lookout in whichever direction the locomotive was moving. On account of the curve of the track to the northeast, the height and overhang of the tender, he obviously could not see anyone who was about to cross the turntable track from the opposite or south side thereof, for some distance back of the locomotive. He saw no person standing on the track or attempting to cross it. He left the locomotive on the turntable not knowing that an accident had happened.
Although the fireman could' not positively say that the person seen was the deceased, it seems to be conceded by the parties that it was the deceased. It is clear that the jury so inferred. The distance that the locomotive last moved was about two hundred feet, about three times its own length, and its greatest speed during that movement was not over four to five miles per hour.
At the conclusion of the testimony the defendant’s motion for a directed verdict was denied, and the issues were submitted to the jury. The jury acquitted the engineer of any negligence, but found the fireman negligent in not discovering the presence of Lind in a position of danger in time to have avoided injury to him; that such negligence was a legal cause of Lind’s injury and death; that Lind himself was guilty of negligence which was the legal cause of his injury and death, and found the percentage of negligence attributable to him. The usual motions for judgment notwithstanding
■ The defendant contends that the court erred in denying the motions because, (1) the plaintiff failed to prove that the defendant was negligent, or, stated differently, the plaintiff failed to show a violation of any duty which the defendant owed to its flagman, employed by it to guard or watch the crossing; and (2) the deceased, as a matter of law under the decisions of the federal courts, assumed the risk of injury-as an incident of his employment as a flagman.
In our view, only the first contention need be considered, since in our opinion the plaintiff wholly failed to prove any negligence on the part of the defendant, and thereby failed to maintain her action. ■ ■
As before stated, actions grounded on. the Federal Employers’ Liability Act are governed by the decisions of the federal courts. In Aerfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, an action brought by a track repairer to recover damages for injuries received by him from a locomotive and train while he was at work repairing the track in a station yard, it was held that the servants of the receiver were guilty of no negligence ;■ that there could have been no thought or expectation on the part of the engineer or of any other employee that the deceased, while at work in a place of danger, would pay no attention to his own safety; that defendant’s servants were not bound to assume that any employee familiar with the manner of doing business would be wholly indifferent to the, going and coming of the cars. In Chesapeake & Ohio R. Co. v. Nixon, Adm’x, 271 U. S. 218, 46 Sup. Ct. 495, an action involving the running down of an experienced section foreman who, at the time of the accident, was operating a railroad velocipede, it was held, Mr. Justice Holmes speaking for the court, that it was the duty of the
We have carefully considered the following decisions of the supreme court of the United States: Norfolk & Western R. Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. 654, 57 L. Ed. 1096; Pedersen v. Delaware, L. & N. R. Co. 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125; Seaboard Air Line v. Koennecke, 239 U. S. 352, 36 Sup. Ct. 126, 60 L. Ed. 324; Union Pacific R. Co. v. Hadley, 246 U. S. 330, 333, 38 Sup. Ct. 318, 62 L. Ed. 751; New York Central Ry. v. Marcone, 281 U. S. 345, 50 Sup. Ct. 254, 74 L. Ed. 892; Western & Atlantic R. Co. v. Hughes, 278 U. S. 496, 49 Sup. Ct. 231, 73 L. Ed. 473; and Rocco v. Lehigh Valley R. Co. 288 U. S. 275, 53 Sup. Ct. 343, 77 L. Ed. 743; and also the following decisions of our own court: Ewig v. Chicago, M. & St. P. R. Co. 167. Wis. 597, 167 N. W. 442, 169 N. W. 429; Kalashian v. Hines, 171 Wis. 429, 177 N. W. 602; Reul v. Wisconsin N. W. R. Co. 166 Wis. 128, 163 N. W. 189, cited by the plaintiff, but we find nothing in any of those decisions which militates against the conclusion
By the Court. — Judgment reversed, with directions to dismiss the complaint.
A motion for a rehearing was denied, with $25 costs, on December 4. 1934.