Hurley v. Chicago & Northwestern Railway Co.

193 N.W. 68, 180 Wis. 290, 1923 Wisc. LEXIS 127

• Court: Wisconsin Supreme Court
• Decided: April 3, 1923
• Status: Published

Opinion

Vinje, C. J.

The trial court overruled the demurrer on the strength of Franke v. C. & N. W. R. Co. 170 Wis. 71, 173 N. W. 701. The rule announced in that ease was abrogated in Beebe v. M., St. P. & S. S. M. R. Co. 175 Wis. 234, 182 N. W. 743, 185 N. W. 177, to conform to the rule announced in Missouri Pac. R. Co. v. Ault, 256 U. S. 554, 41 Sup. Ct. 593. It is therefore now the law in this state that a railway company is not liable for negligence occasioned in the operation of its road while under the control of the director general of'railroads and that it is not a proper party to such an action. Beebe v. M., St. P. & S. S. M. R. Co., supra. Such is the law elsewhere also. Missouri Pac. R. Co. v. Ault, supra; Robertson v. C., B. & Q. R. Co. (Neb.) 188 N. W. 190; Gatehouse v. B. & O. R. Co. 274 Fed. 370; Hines v. Dalm, 267 Fed. 105; Borsheim v. G. N. R. Co. 149 Minn. 210, 183 N. W. 519; Outcelt v. C., B. & Q. R. Co. 150 Minn. 398, 185 N. W. 495.

It is alleged in the complaint that the injury for which damages are claimed was sustained by plaintiff as a passenger on the Chicago & Northwestern Railway Company on March 14, 1918. The court will take judicial notice that on that date the railroad system of the Chicago & Northwestern Railway Company was under the control of the director general of railroads. Grundman v. Davis, 179 Wis. 35, 190 N. W. 839; Moon v. Hines, 205 Ala. 355, 87 South. 603, 13 A. L. R. 1020, and note; Nat. S. Co. v. C. & N. W. R. Co. (Neb.) 187 N. W. 917, and cases cited.

August 29, 1916, the Congress of the United States authorized the President to take possession and assume control of all railroads in the United States. 39 U. S. Stats, at Large, 645, ch. 418; 9 Fed. Stats. (2d ed.) 1095. Pursuant to that act the President, on December 26, 1917, by proclamation to take effect December 28, 1917, at 12 o’clock noon, took possession and assumed control of all the railroads of the United States including the defendant the Chicago & Northwestern Railway. 40 U. S. Stats, at Large, p. 1733. Such control did not cease till March 1, 1920 (41 U. S. Stats, at Large, 457, ch. 91; Fed. Stats. Ann. Supp. 1920, p. 73), and of such cessation courts will also take judicial notice (Crawshaw v. Corbett, 264 Fed. 962). The federal Control Act of March 21, 1918 (Fed. Stats. Ann. Supp. 1918, p. 757), called to our. attention by counsel for respondent, did not inaugurate federal control, but, generally speaking, defined rights and liabilities under federal control and prescribed how it should be exercised.

The trial court therefore erred in overruling the demurrer.

By the Court. — Order reversed, and cause remanded with directions to sustain the demurrer of the Chicago & Northwestern Railway Company and for further proceedings according to law.