166 Wis. 128 | Wis. | 1917
The following opinion was filed June 12, 1917:
The plaintiff alleged in his complaint that the accident was due to the negligence of the defendant in employing only one brakeman instead of two, thereby compelling Joseph Lucia to perform part of the brakeman’s work; that the defendant Avas negligent in not establishing and publishing certain rules and regulations and seeing that they were observed by members of the train crew; that the engineer was guilty of negligence in failing to exercise reasonable care in operating the locomotive engine for the purpose of making the “flying SAAÚteh” by omitting the ordinary precautions for avoiding injury to the deceased.
In order to permit Joseph Lucia to make the “flying sAviteh” he Avas required to take a position on the side of the box car, where he stood upon an iron foot-rest or stirrup at the bottom of the car and held on with his hands to an iron handhold attached to the side of the car. While in this posi
The plaintiff claims that in order to malee the “flying switch” it was the duty of the engineer to slacken the speed of his engine gradually and to '“give slack” in order that Joseph Lucia might pull the pin; and that it was also the duty of the engineer not to speed up his engine in its forward movement until Joseph Lucia, by a. signal, notified him that he had pulled the pin; and that it was also the duty of the engineer to watch from his cab on the engine the movements of Joseph Lucia and not to speed up and move his engine forward until he had received such a signal.
The plaintiff, claims that the engineer carelessly and negligently failed to perform these duties in the ordinary and usual manner, in that after giving slack he rapidly moved the engine forward without waiting for a signal from Lucia to do so and while Lucia was still attempting to pull the coupling pin, and that this careless and sudden moving forward of the engine caused Lucia to lose his balance and fall from the box' car, injuring him seriously, which resulted in his death.
The defendant alleges that the conduct of the engineer in giving slack and then going forward without signal from Lucia was not different from the ordinary and customary way, that the person about to pull the pin sometimes signals the engineer and sometimes not, and that the engineer on the occasion in question leaned from his cab and tried to see Lucia but could not see him. The defendant also alleges that the engineer’s moving of the train ahead without the signal was not the cause of Lucia’s fall resulting in his death.
It appears that the train in question was composed of an engine, a tender, a box car, ten -flat cars, and a caboose, and
The evidence shows that in order to uncouple the flat car as contemplated to make the “flying switch,” Lucia had to reach around the end of the box car with his left hand while leaning toward the flat car standing on the foothold; holding onto the handhold with his right hand, and grasp the handle of the lever attached to the flat car so as to operate this device to pull the coupling pin when the proper slack had been given. It is apparent that Lucia during this operation was necessarily in a reclining or leaning position and that he would necessarily remain in this position until he had pulled the pin to uncouple the cars, and that he would resume the erect position before giving the signal to the engineer to advance so as to pull away from the detached cars and permit them .to run onto the sidetrack. The evidence is in dispute whether or not the engineer could see Lucia at any time after he gave Lucia “slack” to pull the coupling pin, but there is no dispute but that he advanced suddenly after giving “slack” without a signal from Lucia to do so. There is evidence tending to show that Lucia persisted in the leaning position, apparently attempting to operate the lever for pulling the pin, until he had, or nearly had, approached the switch where Miller, the brakeman, was stationed to throw the switch when the cars separated to make the “flying switch.” The conditions surrounding Lucia during the operation as detailed by the evidence tend to show the hazards and dangers to which he must inevitably have been exposed in performing the duties incident to this employment. Viewing them in the light of common knowledge, it is manifest
The testimony of the engineer and the fireman permits of this inference. The effect thereof is concisely summed up by the engineer in the following:
“Q. You knew that moving forward without getting any signal from the man pulling the pin was a pretty dangerous thing? A. Yes, sir. Q. You knew in doing it it was pretty likely to result in his injury ? A. I don’t know if it was or not. Q. . . . When you said it was dangerous you meant he was likely to get hurt, didn’t-you? A. Yes, sir.”
This is very direct opinion evidence interpreting the effect of the sudden forward movement of the engine while Lucia was in the act of performing his duty in uncoupling the fiat cars in question and its dangerous -effect as to Lucia’s safety. The fact of Lucia’s falling off the car at the time and place cannot be questioned. There are no facts or circumstances tending to show that his falling off the train -was attributable to any cause not connected with ’the operation of the train. Whether the facts are disputed or undisputed, if different minds are naturally and honestly led to different conclusions in determining whether or not the want of ordinary care on the part of the engineer in operating 'the train at the time in question was the proximate cause of producing Lucia’s death, then the case presents a jury issue and it was clearly error to take it from the jury. It is abundantly established that if there is any credible evidence in the case from which reasonable inferences may be drawn-in support of the claim of either party the court cannot assume to decide the controversy-
We are persuaded that the facts and circumstances shown by the evidence required submission of the case to a jury and that the court erred in holding that the evidence presented no jury question. If it shall be determined that the engineer’s negligence was the proximate cause of Lucia’s death, then under the facts and circumstances disclosed by the record he did not assume the risk within the contemplation of the federal statute governing the case. Graber v. D., S. S. & A. R. Co. 159 Wis. 414, 150 N. W. 489.
By the Court. — The judgment is reversed, and the cause is remanded for a new trial.
A motion for a rehearing was denied, with $25 costs, on October 23, 1917.