Despins v. Chicago, Milwaukee & St. Paul Railway Co.

81 N.W. 493, 105 Wis. 69, 1899 Wisc. LEXIS 359

• Court: Wisconsin Supreme Court
• Decided: December 15, 1899
• Status: Published

Opinion

Bardeen, J.

The facts upon which defendant’s negligence is predicated may be stated as follows: The engine had gone up.a side track, and coupled to three cars. These cars were drawn upon the main track. Depow, one of the brakemen, climbed on top of the cars, and plaintiff hung on the ladder of the rear car. As the cars were being pulled up to the switch, Earn, the-conductor, gave a signal. Plaintiff read the signal to cut off one car. Depow understood it to be a signal to cut off all the cars, and so repeated it to IVIullen-dyke; who was acting engineer. After the cars had passed the switch, the plaintiff left the cars, threw the switch, and, as they came by him, went in and drew the pin of the last car, came out, and, with his back to the engine, gave a slowdown signal. While running beside the moving cars, he noticed that the pin he had drawn had slipped back into place. He immediately went between the cars, and attempted to draw it, but had some difficulty, on account of its being bent. As he was at work attempting to draw the pin, the speed of the car had been considerably increased. While so running between the cars, his foot hit something,, presumably a spike holding the blocking to a switch, and he was thrown down and injured. Mullendyke saw the signal given by Earn, and understood it to be a signad to’ cut off all the cars. After the cars had been pulled beyond the switch, Depow, who was riding on the top of the cars,. slid down the brake rod next to the tender, and pulled the pin. Plaintiff, after throwing the switch, gave the kick signal, and, as Depow slid down the brake rod, Mullendyke gave his attention to him. Depow also gave a quick-kick signal. In response to this signal, Mullendyke set his engine in rapid motion, and continued it until plaintiff was injured. The element of negligence which is said to render the defendant liable consists in the failure of Mullendyke to see and observe the signals given by plaintiff. The court charged the jury as follows: “Now, the particular in which he is charged with being negligent is the speed of the train — ' the cars — from the time the plaintiff claims he went in to make the second cut and the time the plaintiff was injured. I say it is not claimed that any act on the part of Mullen-'dyke up to that time was negligence, or, in other words, it is conceded that he was not negligent in taking the signal from Mr. Depow, or in reading the signal given by Mr. Earn, the conductor, and acting upon it; and he was not negligent up to the time it is claimed that he should have stopped the train, or slacked the speed, in response to the signal that it is claimed Mr. Des^pms gave him.” This charge was not excepted to, and the fact stated is clinched by the tenth finding, answered by the court by consent of counsel, that both Depow and Mullendyke understood the conduct- or’s signal to be a signal to cut off all the cars, and acted upon such understanding. Thus it appears to be a fact conceded and found that Mullendyke understood that all the cars were to be cut off and kicked back, and acted upon such understanding. With such understanding in mind, he would very naturally turn his attention, as he did, to the brakeman charged with the duty of cutting off the cars. It was from him that signals were to be expected. There was nothing in the circumstances that would lead him to believe or expect that the plaintiff would go between the cars. He supposed, as he had a right to suppose, that plaintiff intended to “ ride tbe ears down.” With the fact in mind that Depow was to out off the cars from the tender, it was his absolute duty to direct Ms attention to him. He was not expecting a signal from plaintiff, and had no reason to expect one. He had no reason to anticipate that plaintiff would put himself in a place of danger, or that he would do anything different from his duty to mount the cars, and ride them down the main track. But, even if he had seen plaintiff’s signal, there was nothing in the situation that would have led him to refer it to any cut attempted to be made by him. It would have conveyed no other idea than that the cut had been made, and hence the speed with which the cars were being kicked back would have been a matter of indifference. These facts are so conclusive that it leaves the plaintiff’s case without any substantial foundation. To warrant a recovery, there must be negligence proven, and such negligence must have been the proximate cause of the injury. Plaintiff’s case lacks both these important elements. It being conceded that the engineer was guilty of no negligence in understanding and acting upon the conductor’s signals, there was nothing in the case, as we view it, which should have led him, as a reasonable man, to anticipate that the plaintiff would put himself in a position of danger, where the increased speed of the train would be likely to do him injury. This conclusion reaches the vitals of the case, and renders a discussion of other questions raised unnecessary. The action of the trial court was fully justified.

By the Court.— The judgment of the circuit courtis affirmed.

Dodge, J., dissents.