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

Wisconsin Supreme Court

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

78 N.W. 424, 102 Wis. 213, 1899 Wisc. LEXIS 34

CourtWisconsin Supreme Court

DecidedFebruary 21, 1899

StatusPublished

Cited by2 cases

This text of 78 N.W. 424 (Harden v. Chicago, Milwaukee & St. Paul Railway Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harden v. Chicago, Milwaukee & St. Paul Railway Co., 78 N.W. 424, 102 Wis. 213, 1899 Wisc. LEXIS 34 (Wis. 1899).

Pincite

Opinion

Dodge, J.

1. We find it impossible to agree with the court below in the conclusion that there was np evidence to go to the jury on the question of defendant’s negligence. The testimony both of the plaintiff and of the witness Slocum tended to show that the forward portion of the train was driven against the rear part with such violence as could be accounted for only by negligence in the train hands, or defective apparatus. The testimony of both witnesses is that the shock of the collision was more violent than any either had known in the coupling of freight trains, of which both had had much prior experience. Slocum placed the rate of speed of the backing train at four or five miles per hour, of which, however, he obviously could judge only by the violence of the collision. Plaintiff testified that the caboose was driven backward some thirty feet. True, defendant’s witnesses very [215]*215fully contradict any unusual violence; but for the purpose of nonsuit the evidence for defendant, at least such as merely raises a conflict with that for the plaintiff, is not to be considered. Lewis v. Prien, 98 Wis. 87; O'Brien v. C. & N. W. R. Co. 92 Wis. 340; Kruse v. C., M. & St. P. R. Co. 82 Wis. 568.

2. The question of plaintiff’s contributory negligence also, we think, should have been left to the jury. His knowledge, actual or imputed, of the likelihood of an immediate coupling, is by no means clear, though, of course, he must have known that such event would occur before very long. There is evidence tending to show that his stoppage in the aisle for •conversation was but momentary. Again, the question is present whether his position was such as to render likely an injury if the coupling were made with ordinary care, or was perilous only in the event, not to be anticipated, of a negligently violent one.

The nonsuit was improper.

By the Court.— Judgment reversed, and cause remanded for a new trial.

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Dodge, J.

1. We find it impossible to agree with the court below in the conclusion that there was np evidence to go to the jury on the question of defendant’s negligence. The testimony both of the plaintiff and of the witness Slocum tended to show that the forward portion of the train was driven against the rear part with such violence as could be accounted for only by negligence in the train hands, or defective apparatus. The testimony of both witnesses is that the shock of the collision was more violent than any either had known in the coupling of freight trains, of which both had had much prior experience. Slocum placed the rate of speed of the backing train at four or five miles per hour, of which, however, he obviously could judge only by the violence of the collision. Plaintiff testified that the caboose was driven backward some thirty feet. True, defendant’s witnesses very [215]*215fully contradict any unusual violence; but for the purpose of nonsuit the evidence for defendant, at least such as merely raises a conflict with that for the plaintiff, is not to be considered. Lewis v. Prien, 98 Wis. 87; O'Brien v. C. & N. W. R. Co. 92 Wis. 340; Kruse v. C., M. & St. P. R. Co. 82 Wis. 568.

2. The question of plaintiff’s contributory negligence also, we think, should have been left to the jury. His knowledge, actual or imputed, of the likelihood of an immediate coupling, is by no means clear, though, of course, he must have known that such event would occur before very long. There is evidence tending to show that his stoppage in the aisle for •conversation was but momentary. Again, the question is present whether his position was such as to render likely an injury if the coupling were made with ordinary care, or was perilous only in the event, not to be anticipated, of a negligently violent one.

The nonsuit was improper.

By the Court.— Judgment reversed, and cause remanded for a new trial.

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Bluebook (online)

78 N.W. 424, 102 Wis. 213, 1899 Wisc. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harden-v-chicago-milwaukee-st-paul-railway-co-wis-1899.

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