Baltzer v. Chicago, Madison & Northern Railroad

Pinney, J. 1. It is manifest that the evidence of the negligence of the engineer in running the engine on the spur track at an unsafe rate of speed, on the occasion when the plaintiff was riding on the pilot with a view to couple .the drawbar of the pilot to the flat cars, required the submission of the case to the jury. Whether the accident was caused, as the plaintiff testified, by the sudden reversal of the engine, whereby he was thrown forward and caught and his arm crushed, as he describes, or. whether he accidentally and without fault of the engineer lost his balance while holding the drawbar and reaching forward to draw the pin or to attempt to make the coupling, was a question for the jury, as well as the question whether the engineer ran the engine at a dangerous rate of speed up to the point where the plaintiff claims he suddenly reversed the engine, and within a few feet of the flat cars. The motion for a nonsuit was, we think, properly denied. Whether the evidence of negligence on the part of the plaintiff, occurring at the time and directly contributing to his injury, was so clear and decisive as to warrant the court in withdrawing the case from the jury and directing a verdict for the defendant, it is not necessary now to decide. We think that it may be fairly claimed that the evidence of contributory negligence on the part of the plaintiff was such, ai least, that different minds might well come to different conclusions in respect to it, and as to whether the plaintiff should or should not recover. We think, however, that the judgment of the circuit -court should be reversed for error in the instructions to the jury. The evidence is undisputed that the engineer is under the command and control of the brakeman while en — 470 — gaged in coupling and switching cars in or out on side or spur tracks, and is hound to obey his signals. It is clear that the plaintiff did not give him any signal such as the code of signals and course of business required, although he was, as his testimony shows, fully conscious of the rate of speed at which the engine was running, and although he shouted, merely, the engineer testified that he did not hear him; and he was, as he says, looking out and attending to his duties. The proper signal was by a motion in the night-time of the lamp or lantern, and in daylight with the hand. It is true that the plaintiff says that at times they shouted, instead of making signals such as the code required ; but employees, in doing so, took great risk of the signal not being heard or understood. The code, requiring signals to be such as are addressed to the eye instead of the sense of hearing, is no doubt founded on long experience, and upon the ground that one addressed to the eye is much more certain and likely to be understood than one attempted to be conveyed by sound of the voice, which may not be heard or understood, in consequence of the noise of the engine and cars in motion, and the escape of steam. Again, the evidence shows, not that it is dangerous to ride on the pilot when going at the rate of speed mentioned, but that it is dangerous to attempt to make the coupling under the circumstances stated; the pin not having been properly placed, but being in the drawhead of the flat car, so that the coupling could not be made without it being first withdrawn. The rules required the plaintiff to “be very particular to notice the speed at which cars are moving” when coupling, and, “if moving at a dangerous rate, no attempt must be made to couple by going between the cars; ” and it was further declared that “ it is dangerous to uncouple, or attempt to place links or pins or drawbars, while cars are in motion, and is strictly forbidden.” The plaintiff’s testimony shows that on this occasion it was his — 471 — duty to have known that the pin was properly placed, so as to safely make the coupling, or to have himself placed it there. He had the right, by proper signal, to regulate the speed of the engine, and even to stop it, so that he could-place the pin and make the coupling in a safe and prudent manner. He took the risk of doing what his employer had forbidden him to do, and disregarded the observance of methods calculated to secure his safety, as shown by experienced railway employees long familiar with such work. It is argued that the witness Stein, in his testimony, justified the course pursued by the plaintiff. He said it “ was safe to ride on the pilot before he made the coupling, if it did n’t strike anything; that it was perfectly safe to ride on the pilot going down the side track, but when he found the pin was not set he should have stopped the engineer. To make the coupling safely, it was his duty to know' that the pin was in the proper position before he attempted to make it, and before his engine arrived there.” He also said: “ It was the duty of the engineer to slow up without a signal, so that the coupling could be made in safety.” “ I should say it was a dangerous thing to make a coupling of the front of an engine to a car, riding on the pilot; the pin in and the engine moving. The danger consists in the fact that he cannot make the coupling unless he attempts to raise the pin just as he enters the drawbar. I should think it would take his attention away from one place to another, from where he was going to enter the drawbar to where he was going to catch the pin, and he is liable to let his drawbar, from the weight of it, swing below the hole and strike the lower lip and glance down.” The witness Carter testified that he had made couplings under the circumstances described, but said: “ It would be dangerous to attempt to make the coupling when the pin is in the hole with the drawbar in my hand. The danger consists in your being liable to hit the drawbar, or be thrown under the engine or — 472 — car, if you didn’t happen to make it. If you cannot get the pin out in time, you are liable to let the drawbar drop and the pilot run under the car and crush a man, — throw him off the pilot, and be run over by the engine.” If it was the duty of the engineer to slow up without a signal, his failure to do so might not justify the brakeman in neglecting to give a signal until it was too late to be effective. It is difficult to distinguish this case from Lockwood v. C. & N. W. R. Co. 55 Wis. 50, 66, in which this court said: “If he voluntarily placed himself in a dangerous position, not required of him by the rules of the company or by the order of some superior officer or employee, and was injured while in such position, even though the negligence of the company was one cause of the injury, he cannot recover, because his placing himself in such dangerous position was also negligence on his part, and contributed to the injury.” Wolsey v. L. S. & M. S. R. Co. 33 Ohio St. 227. And many other cases might be cited to this effect. It is apparent from these considerations that the question of the existence of contributory negligence, under the evidence, to say the least, was a fairly close one. Whether the effect of his conduct may not be controlled '.or materially modified, in view of the conflict of evidence as to the speed of the engine, and evidence that it was the duty of the engineer to have slowed up without a signal, and whether he did so or not, and in view of all the other facts and circumstances, or whether the plaintiff was' guilty of contributory negligence, so that the court should have directed a verdict for the defendant, we do not find it necessary to decide, and we intimate no opinion on the point. The evidence has been quite fully collated in order to show the general state of the evidence, as bearing on the effect of the instructions of the circuit judge. There was no evidence justifying the submission of the question of negligence of the defendant on account of the condition of — 473 — the spur track, to the jury, as a substantive ground of recovery, as the court did by the instructions upon that subject, though evidence of the condition of the track, known to the engineer, might have a material bearing on the question of his negligence in running the engine. There was no evidence to go to the jury to show that the condition of the spur track was in any proper sense the proximate cause of the plaintiff’s injury. The testimony of the plaintiff imputes his injury solely to the sudden reversal of the engine by the engineer; and the evidence of the engineer is to the effect that he had complete control of the engine, and after reversing it he could have run it back by giving his engine steam. If the' alleged imperfect condition of the. track was all the ground of recovery shown, it is, we think, impossible to maintain that the case should have been submitted to the jury. The instruction to the jury, in substance, that the alleged improper condition of the spur track was one of the two issues upon which the jury were to find, excepted to by the defendant, and the giving of the other instruction mentioned in the foregoing statement, in respect to the duty of the company in keeping a reasonably safe and convenient track, and “ that if it neglected this duty, and in consequence of such neglect 'the plaintiff was injured while in the exercise of ordinary care,” etc., “ then the defendant is liable in damages t'o him for such injury, and your verdict must be for the' plaintiff,” left it for the jury to conjecture, and so find, that the condition of the track was a proximate cause of the injury, when there was no legitimate evidence before the jury upon which to base any such conclusion; and this instruction was made more specific and objectionable by the instruction that the employee of the company “does not assume the risks arising from the negligence of the defendant in failing to provide a suitable roadbed and track.” These instructions had a — 474 — manifest tendency to mislead the jury; and they may have influenced the determination of the jury on the question of contributory negligence, and aided materially in turning the scale on that point against the defendant. The objection to the charge is, in substance, the same as in the case of Heddles v. C. & N. W. R. Co. 74 Wis. 240, 255, and cases cited on page 257; Beery v. C. & N. W. R. Co. 73 Wis. 197, 199. The circuit judge, in instructing the jury on the subject of what would be considered due care, said that “it [due care] has relation to the situation of the parties and the business in which they are engaged, and varies according to the exigencies which require vigilance and attention, conforming in amount and degree to the particular circumstances under which it is to be exercised;” and then charged the jury, generally, that “ where a plaintiff is compelled to act at once, in the presence of imminent danger, he cannot be held guilty of contributory negligence, as a matter of law, merely because he did not choose the best means of escape from the danger.” The last instruction would be proper only where the plaintiff is brought in the presence of danger by and through the negligence and want of care of defendant or others. The instruction, as applied to the facts of this case, would leave the jury to conclude that if the plaintiff, in the emergency in which he found himself, chose the best means of escape that occurred to him, although not the best calculated in that particular exigency, this fact might exculpate and relieve him from the consequences of his contributory negligence, if they found that he had been guilty of such, by which he was brought into such a dangerous position. This instruction was misleading and erroneous. These instructions were not applicable to the evidence and may have misled the jury. We cannot say that they Note. — By oh. 438, Laws of 1889, in force at the time the injury occurred, it is provided that “ every railroad corporation doing business lin this state shall be liable for damages sustained by any employee thereof within this state, witfiout contributory negligence on his part, when such damage is caused by the negligence of any train dispatcher, telegraph operator, superintendent, yard master, conductor, or engineer, or of any other employee who has charge or control of any stationary signal, target point, block, or switch.” •did not. For these reasons the judgment of the circuit court must be reversed, and a new trial granted. By the Court.- — The judgment of the circuit court is reversed, and the case remanded for a new trial.