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

Winslow, J. The long-established rule of this court is that a verdict for defendant should only be directed when the plaintiff’s evidence, under the most favorable construction it will reasonably bear, including all reasonable inferences from it, is insufficient to justify a verdict in his favor. Radmann v. C., M. & St. P. R. Co. 78 Wis. 22. The plaintiff claims that under this rule his evidence was sufficient to require submission to the jury of at least two cpestions, viz.: First, whether defendant was not guilty of [570] negligence in furnishing a car of defective and unsafe construction without notice or caution to plaintiff of the defect ; and, second, whether the engineer was not guilty of negligence for which defendant is liable in disobeying signals and backing the train suddenly at an increased rate of speed, just as the coupling was about to be made. 1. It is clear that there was no sufficient evidence to justify the submission of the first question to the jurjn Giving to plaintiff’s testimony its most favorable construction, it appears that the sole evidence of a defect was that the upper surface of the Potter draught iron was five or six inches lower than the Janny iron, and that the opening -was four inches lower. Conceding that from this evidence the Potter iron could be found in a defective condition, there is no evidence tending to show that this defect, if such it was, in any way contributed to produce the accident. According to plaintiff’s own testimony, the link went in, apparently without difficulty. It was a straight link. No fact or circumstance is stated by plaintiff or suggested by his testimony which in any way tends to trace the injury to the condition of the Potter draught iron. The hand was crushed between the two draught irons. Every fact in plaintiff’s evidence tends to show that it would have been just as liable to be crushed had the draught irons been exactly opposite each other. 2. The plaintiff was, however, entitled to have the second question submitted to the jury. His evidence tends to prove that when he was just about to couple the two cars, they being but a few inches apart, without any signal the train suddenly came back with increased speed, and thereby crushed his hand between the bumpers. One reasonable inference from this testimony is that the engineer suddenly and negligently, without notice, changed and increased the speed of his engine when the plaintiff had given no signal and was in a position of extreme danger. It avails not to [571] say that the engineer and fireman, as witnesses for defendant, both deny any increase of speed. TJpon the question of the propriety of directing a verdict for defendant the evidence of defendant’s witnesses is not to be considered. The jury might find, under the plaintiff’s testimony, that the engineer, without any signal, negligently increased the speed of the engine, thereby causing plaintiff’s injury. The defendant is liable for injuries caused to an employee by the negligence of an engineer, in the absence of contributory negligence on the part of the employee. Oh. 438, Laws of 1889. By the Oourt.— Judgment reversed, and cause remanded for a new trial.