Whitwam v. Wisconsin & Minnesota Railroad

| Wis. | Oct 23, 1883

Lyoit, J.

One branch of the argument submitted by the learned counsel for the appellant is based on the assumption that the “ Green Bay railroad car ” mentioned in the complaint belonged to some other railroad company. We think this assumption is not sustained by the averments of the complaint. It is therein alleged that before and at the time the plaintiff was injured, the cars, locomotives, and all other appurtenances used by the defendants in and about operating and running their railroads, were owned by the defendants. This covers and includes the Green Bay car. We therefore agree with the learned counsel for the plaintiff that the term is only employed to describe the car, not to designate the owner; and hence, that we have no question here of the duty of the defendants in respect to a foreign car which is being hauled by them over their railroads.

It is alleged generally in the complaint that the draw-bar •of tbe engine wbicb was driving the train on which the plaintiff was employed was defective, but, wherever the particular defect is specified, it is invariably charged in the complaint to be that the draw-bar was too short to •enable the Green Bay car to be safely coupled to or detached from the engine. It is, we think, a fair and reasonable construction .of the complaint to hold that this is the only defect in the draw-bar alleged therein. It is not alleged that there was any defect in the Green Bay car or any other defect in the engine. It does not appear bu,t that all other cars of the defendants could have been safely ■coupled to or detached from the engine with the short draw-bar, or that the Green Bay car could not have been safely coupled to* or detached from any other locomotive, or, perhaps, any other car, of the defendants.

A railroad company is not required to have all its cars or locomotives constructed after the same pattern. It may lawfully construct them after different models, and may use different appliances in operating its railroad. The law only requires that such cars, locomotives, and appliances shall be reasonably safe for the uses to which they are put. Hence, it was not per se negligence on the part of the defendants to use upon their railroads an engine, the draw-bar of which was too short to permit one of its cars to be safely coupled to or detached from such engine.

It seems to us that the gravamen of this action was the ■coupling of the Green Bay car to the engine with the short •draw-bar, and this is really the only negl igence charged in the complaint. It does not appear when, where, or by whom this Green Bay car -was attached to such engine, but the attaching of it, as well as the order detaching it therefrom, were manifestly the acts of the servants of the defend■ants engaged in operating their railroads, and hence of the co-emplpyees of the plaintiff, and therefore the defendants are not liable for the injury to the plaintiff resulting therefrom. We perceive no escape from this conclusion. Such being the case made by the complaint, the court is of the opinion that, in its present-form, it fails to state a cause of action.

The order overruling the demurrer must be reversed, and the cause remanded with directions to the circuit court to-sustain the demurrer.

By the Court. — It is so ordered.