Gumz v. Chicago, St. Paul & Minneapolis Railway Co.

Cassoday, J. By section 1816, R. S., every railroad corporation is made liable for all damages sustained by any agent or servant thereof by reason of the negligence of any other agent or servant thereof, without contributory negligence on his part, when sustained within this state. In case the injury causes death, such right of action is preserved, by sections 4255-6, R. S., to the personal representative of such deceased person. There is no claim here of any negligence on the part of any one connected with the running of the train. There is no claim of any negligence by reason of the section foreman being on the track with his hand-car and men at the time and place in question, nor by reason of his failing to act or command promptly, and execute with vigor. The only negligence imputed to any agent or servant of the railroad company is the nature of the command given by the section foreman. It is claimed that it would have been safer to have put the handcar off the track, or to have shoved it back without any one getting onto it, than to do as they did. It is also claimed that there was some evidence tending to show that the command was to “run ” the hand-car back, which, it is claimed, meant to get onto it and pump it back, and that from such command the jury had the right to infer negligence. We have great doubt whether the evidence would justify a special verdict that such command was in fact given; but for the purposes of this case we shall assume that it was. The emergency presented for choice some one of at least four different lines of action. The command might have been to put the hand-car oft’ the track. It might have been to let it remain on the track, and for the men to take care of them [677] selves. It might have been to push it bach as far as they could without endangering themselves, and without getting onto it. Or the command might have been for some to get on and pump, and the balance push as they did. Which of these several lines of action was most judicious? The danger was imminent. By calculation, it would seem that the speed of the coming train was such, if not slackened, as to bring it upon the hand-car in less than half a minute. Whether the speed would thus be slackened was a fact which the section foreman could not know, but at most could only conjecture. In any event, the attempt to slacken was certain to be postponed until the engine came out of the cut around the curve, and out from behind the embankment, sufficiently to enable the engineer to take in the situation and comprehend the danger. But he might not at that moment notice the handcar. If he did not, a few seconds would bring the engine to a point where all attempts to materially slacken the speed would be futile. The peril was not only immediate, but great; not so much to the lives of the section foreman and his men, for they at the moment were all on the ground, and we must assume that each had eyes, ears, mind, and the power of locomotion, with the natural instincts of self-preservation, and hence would be sure to escape, as it does not appear that there was, at the place where they were, any obstacle to prevent. There was, of course, danger to the hand-ear, and counsel urge that that was the only danger in the mind of the section foreman at the time of giving the command; but we cannot shut our eyes to the fact that such danger was merely to property, and that, comparatively, of but trifling value. It would seem preposterous to assume that the mind of the section foreman was wholly engrossed - with the project of saving the hand-ear, and that he did not comprehend the inevitable danger, if not obviated by him and his men,' to the swiftly-coming train and the lives of the men upon it, having but very little opportunity of escape. These are some of the [678] thoughts which naturally, and, as we think, necessarily crowded themselves upon the consideration of the section foreman at the moment when he was required to decide which of the lines of action indicated he would pursue. There was no time for deliberation. The emergency demanded an immediate decision. A few seconds of delay in giving the command, and the time for executing it would be past. There was no hesitation. The decision of the section foreman was immediate, his command prompt, and the commencement of its execution speedily followed, while he did what he could to arrest the attention of the engineer to the peril of the situation, and in that he seems to have been successful. The hand-car was started back towards the trestle, about 300 feet distance, with two men at the pump and two pushing at either side. The intestate was at the pump, with his face towards the coming engine, and, seemingly, in the best position of any of the section men to take in the danger of the situation, and the necessity rapidly being forced upon him to make his escape. There was, apparently, no difficulty in his seeing Torrelson and O’Neill leave the hand-car on the one side, and then Hunger and his brother William leave the hand-car on the other, when the latter told him and his son to jump from the hand-car. So, a little later, he was, seemingly, in a situation to see his nephew jump from the hand-car, and at the same time hear his halloo for him to do the same, when there were still from thirty to sixty feet between the hand-ear and the trestle. Thus, while the hand-car was passing over the 300 feet of track, upon a grade no part of which was so elevated as to endanger life by jumping, the intestate, apparently, had not only warning, but time for deliberation as to whether he would jump or remain, with the seeming capacity to do either. Just why he concluded to remain, can only be conjectured. Certainly there was nothing in the command of the section foreman which required him to remain upon the hand-car until it reached the trestle, even if he impliedly commanded him to get onto it. We do not say [679] he was guilty of contributory negligence in deciding- not to jump, for, in view of the constantly slackening- speed of the train, it may be that he believed he was justified in taking his chances by remaining upon the hand-car; but we are to remember that the intestate was engaged in the service of the company, and hence had taken upon himself the usual and necessary risks of the service. Strahlendorf v. Rosenthal, 30 Wis., 674; Schultz v. Railway Co., 44 Wis., 638. In deliberately choosing as he did, he took the risk implied in the choice. If contributory negligence is not to be imputed to the intestate for the decision which he thus finally made while passing over nearly 300 feet of track, then, for a much stronger reason, it would seem to follow that no negligence can be imputed to the section foreman for giving the command, under the circumstances in which he was placed. The court is asked, as a matter of law, to determine whether the jury were authorized to infer negligence from the command given; and in doing so it must necessarily determine whether any other line of action could have been chosen by the section foreman which would have been less hazardous. If there was not, then it would be unjust to hold him negligent for choosing the one instead of the other. In view of the weight of the hand-car (over 1,000 pounds), the nearness of the train, the rapidity of its speed, and the intervening obstructions to the vision of the engineer, it would seem that the course taken was much less hazardous than an attempt would have been to put the hand-car off the track, the failure to do which is one of the grounds of the complaint. It may be that the section foreman had the option of a safer course than the one he adopted; but, even then, we should not impute negligence to such mere error of judgment. Such mere error of judgment does not have within it the elements of negligence. We conclude, therefore, that where there are two or more different lines of action, any one of which maybe taken, and a person with ordinary skill, in the presence of imminent danger, [680] is compelled immediately to choose one of them, and does so in good faith, the mere fact that it is afterwards ascertained by the result that his choice was not the best means of escape, cannot be imputed to him as negligence. See Schultz v. Railway Co., 44 Wis., 638. By the Court.— The judgment of the circuit court is affirmed.