Vaundry v. Chicago & Northwestern Railway Co.

Wisconsin Supreme Court

Vaundry v. Chicago & Northwestern Railway Co.

109 N.W. 926, 130 Wis. 233, 1906 Wisc. LEXIS 3

DecidedDecember 4, 1906

StatusPublished

This text of 109 N.W. 926 (Vaundry v. Chicago & Northwestern 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

Vaundry v. Chicago & Northwestern Railway Co., 109 N.W. 926, 130 Wis. 233, 1906 Wisc. LEXIS 3 (Wis. 1906).

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Opinion

Cassoday, C. J.

Upon the evidence, of which a general summary is given in the foregoing statement, the trial court granted a nonsuit. On the part of the plaintiff it is claimed that the evidence tends to prove that the injury was caused by the negligence of the section foreman, who was at the time a co-employee with the deceased within the meaning of the statute. Sec. 1816, Stats. 1898, as amended by ch. 448, Laws of 1903. Such negligence is said to consist in his failure to ascertain from the telegraph operator in the tower that a train was expected to arrive from the east and then to inform the deceased of the fact before sending him to put up the slow-flag. But the only reason for sending the deceased [237]*237to put up tbe slow-flag was because some traiu was tbeu expected from the east. It might be quite uear or it might be-quite distant. After putting up the slOw-flag the deceased was to return and work with the crew during the forenoon, and, if the foreman did not return, then he was to patrol the track during the afternoon. According to the evidence the slow-flag was to inform the men operating the train, so as to keep the same under control. As stated by the trial court, it is not the practice and it is not expected that the section foreman will be with his crew during all the time they are at work. When so at work they necessarily assume the risk of their own safety. This court has recently held that “section-men upon railroads assume the risk of trains of all sorts, ‘regular’ or ‘wild,’ running over the tracks at all times and at such rates of speed as are attainable, without notice or warning except such as results incidentally from the ordinary noises of the train, including such bell and whistle signals as are customary.” Ives v. Wis. Cent. R. Co. 128 Wis. 357, 107 N. W. 452. The testimony on the part of the plaintiff brings the case squarely within the rule thus stated. The statute cited precludes recovery where the injured party is guilty of contributory negligence. The deceased was necessarily going toward the approaching train at the time. According to the testimony there was nothing to obstruct his view of the t^ain for 600 or 800 feet ahead of him. So, as. held by the trial court, if there was negligence on the part of the defendant, still the deceased “was equally guilty of contributory negligence on his part.” So we concur with the trial court in holding that there is no statute requiring the employees of a railway company to signal by whistle merely because the train is rounding a curve. Besides, it appears that the whistle was blown some time before the accident. We fail to find any reversible error.

By the Court. — The .judgment of the circuit court is affirmed.

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Cassoday, C. J.

Upon the evidence, of which a general summary is given in the foregoing statement, the trial court granted a nonsuit. On the part of the plaintiff it is claimed that the evidence tends to prove that the injury was caused by the negligence of the section foreman, who was at the time a co-employee with the deceased within the meaning of the statute. Sec. 1816, Stats. 1898, as amended by ch. 448, Laws of 1903. Such negligence is said to consist in his failure to ascertain from the telegraph operator in the tower that a train was expected to arrive from the east and then to inform the deceased of the fact before sending him to put up the slow-flag. But the only reason for sending the deceased [237]*237to put up tbe slow-flag was because some traiu was tbeu expected from the east. It might be quite uear or it might be-quite distant. After putting up the slOw-flag the deceased was to return and work with the crew during the forenoon, and, if the foreman did not return, then he was to patrol the track during the afternoon. According to the evidence the slow-flag was to inform the men operating the train, so as to keep the same under control. As stated by the trial court, it is not the practice and it is not expected that the section foreman will be with his crew during all the time they are at work. When so at work they necessarily assume the risk of their own safety. This court has recently held that “section-men upon railroads assume the risk of trains of all sorts, ‘regular’ or ‘wild,’ running over the tracks at all times and at such rates of speed as are attainable, without notice or warning except such as results incidentally from the ordinary noises of the train, including such bell and whistle signals as are customary.” Ives v. Wis. Cent. R. Co. 128 Wis. 357, 107 N. W. 452. The testimony on the part of the plaintiff brings the case squarely within the rule thus stated. The statute cited precludes recovery where the injured party is guilty of contributory negligence. The deceased was necessarily going toward the approaching train at the time. According to the testimony there was nothing to obstruct his view of the t^ain for 600 or 800 feet ahead of him. So, as. held by the trial court, if there was negligence on the part of the defendant, still the deceased “was equally guilty of contributory negligence on his part.” So we concur with the trial court in holding that there is no statute requiring the employees of a railway company to signal by whistle merely because the train is rounding a curve. Besides, it appears that the whistle was blown some time before the accident. We fail to find any reversible error.

By the Court. — The .judgment of the circuit court is affirmed.

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109 N.W. 926, 130 Wis. 233, 1906 Wisc. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vaundry-v-chicago-northwestern-railway-co-wis-1906.

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