Rowlands v. Chicago & Northwestern Railway Co.

149 Wis. 51 | Wis. | 1912

BarNes, J.

The complaint alleged that the plaintiff was a resident of Wisconsin; that on February 25, 1910, he was in the employ of the defendant on a passenger engine owned by it and “used and operated over and upon the lines of said defendant company at and between the city of Chicago, in the state of Illinois, and the city of Milwaukee, in the state of Wisconsin,” and further, “that on the morning of the 25th day of February, 1910, the plaintiff was employed by and working for said defendant company in the capacity of a fireman of an engine which was then and there being used to haul a combined passenger, baggage, express, and mail train from the city of Chicago northward toward the city of Milwaukee.” It is further alleged that plaintiff, while employed as aforesaid, was injured at Zion City.

At the close of plaintiff’s case in chief a motion was made to dismiss the action because the complaint was framed under the state statutes, whereas the proof showed that the case was one “which should he properly brought under the federal Employers’ Liability Act.”' The motion was denied and such ruling is assigned as error.

We think the facts were sufficiently pleaded to show that the case was within the federal statute and that it was unnecessary to plead the statute itself. Acts of Congress are not foreign laws and state courts take judicial notice of them. 12 Ency. of Ev. 31, and cases cited in note 2. Ordinarily if the facts alleged bring the cause of action within the terms of a federal statute, this is sufficient. The averment that plaintiff was employed as a fireman on an engine running between Chicago and Milwaukee and hauling passengers and mail shows that plaintiff was engaged in facilitating interstate commerce. This being so, Ms rights were referable to the federal law referred to (35 U. S. Stats. at Large, 65, ch. 149, as amended April 5, 1910). As to such employees, the federal statute supersedes state statutes covering the same field. Second Employers’ Liability Cases (Mondou v. N. Y., N. H. & H. R. Co.) 223 U. S. 1, 32 Sup. Ct. 169; State v. C., M. & St. P. R. Co. 136 Wis. 407, 117 N. W. 686. It is not claimed that the state courts have not jurisdiction to try actions coming under the statute referred to. If there was any informality about the pleading, the remedy of defendant was a motion to make the complaint more definite and certain. It was not a case where one cause of action was pleaded and another was proven. The pleader seems to have attempted to state the necessary facts to bring the case within the federal law. In Creteau v. C. & N. W. R. Co. 113 Minn. 418, 129 N. W. 855, relied on by appellant, the plaintiff specifically pleaded ch. 254, Laws of Wisconsin for 1907, and based Ms right of recovery thereon, and the court held that it was error under such a pleading to allow a recovery under the federal law. We think the cause is far afield from the one we have before us.

The contention most strenuously urged by appellant is that there was no evidence of negligence on its part. Its witness Main testified that mail cranes are erected on a uniform plan and that the standard clearance between the inside of the ball of the near rail and the catch near the end of the hook where the strap of the mail pouch is suspended is three feet nine inches. Witness Flynn testified that the regular clearance is three feet and nine inches from the inside of the ball of the rail to the end of the arm. There is a slight discrepancy between the testimony of the witnesses, as the photographs offered indicate that the hook is not attached to the extreme end of the arm. Both witnesses are agreed that the standard distance from the top of the rail to the bottom of the upper arm is ten. feet and one half of an inch, and Elynn testified that the distance in the instant case was one inch less than the standard. It was also shown, and is undisputed, that the railway company is not permitted to change this standard without the consent of the United States. Defendant contends that the lateral clearance in the present case was two and one-half inches greater than the standard, and that therefore any extra play which the mast might have had did not bring the arm as close to the side of the train as it would have come had the standard clearance been maintained. Defendant also contends that the uncontradicted proof shows that the mast was wedged back at the time plaintiff was injured. Defendant’s witness Elynn made the only measurements in reference to clearance that were produced, and it is argued that, inasmuch as the other witnesses only estimated the distance, their evidence raised no issue on the question. However this may be, we think there was evidence from which the jury could find defendant negligent. The demand of the public for rapid transit and frequent mail delivery has led to the introduction of the mail crane, and it, like other obstructions close to a railway track, has made the employment of trainmen more hazardous. Having adopted a standard that may of necessity be dangerous, defendant had no right to materially increase the danger by permitting the crane to become out of repair. The evidence is undisputed that the upper arm had worked out of the mortise in the mast three quarters of an inch. This had a tendency to throw it outward and downward, and no doubt accounts for thé fact that it was an inch below the standard height. In a situation of this kind the departure from the standard cannot be regarded as trivial. Even an inch might materially increase the danger to employees, and the jury might well have found in the instant case that the lowering of the arm was the sole cause of plaintiff’s injury, because it might conclude from the evidence that plaintiff was struck by the lower corner of the arm. Tbe outer plate of the skull was fractured, while the inner plate, only about one sixteenth of an inch therefrom, was not broken, notwithstanding the fact that it is much more frail and brittle than the outer plate. It is reasonably certain that, had the arm been an inch farther from plaintiff’s head, he would either have escaped injury or have been injured very slightly. So, regardless of whether there was any conflict in the evidence as to the amount of clearance between the side of the train and the end of the arm, we think the undisputed facts in the case were such that the jury might have found the defendant negligent.

We are satisfied that the questions of assumption of hazard and of contributory negligence were jury questions, and that the court cannot say as a matter of law that plaintiff either assumed the risk or was guilty of contributory negligence. A review in extenso of the evidence on these questions would serve no useful purpose. The plaintiff testified that he thrust his head out of the window to look for signals, as it was his duty to do, and that he had no knowledge of the existence of the mail crane. He had not fired on any passenger train which ran through Zion City in the daytime, until the day he was injured, and his work on freight trains was not calculated to call his attention to the danger to be apprehended from mail cranes, inasmuch as the arms were swung away from the track when not in use and would not endanger an employee riding in the cab of an engine.

The jury awarded the plaintiff $8,100 damages, and it is contended that the verdict is excessive. The plaintiff was about twenty-eight years of age and earning $125 a month at the time of the injury. The injury itself was serious. The outer table of the skull was fractured for a length of four and one-half inches. Plaintiff testified that he was wholly incapacitated for labor during the year that elapsed between the time of the injury and the time of the trial. There was medical testimony tending to show that the injury was permanent, at least unless relief could be secured by an operation, and it was a matter of conjecture whether an operation would afford anything more than temporary relief. The case is one where the award of the jury should not be disturbed.

It is said that the verdict is informal and insufficient because all of the material issues in the case were not submitted to the jury. No question was requested which would tend to cure the omissions complained of. Such being the case, we must presume that the court found in plaintiff’s favor on any material issue not passed on by the jury.

By the Gowrt. — Judgment affirmed.