Boucher v. Wisconsin Central Railway Co.

The following opinion was filed December 7, 1909: Siebecker, J. The appellant assails the court’s decision holding that the evidence in the case required submission of the issues whether the engineer was negligent in conducting the defendant’s business at the time Boucher was' injured; if so negligent, whether it was the proximate cause of the injury, and whether such negligence was a greater or less contributing cause in producing Boucher’s death than his contributory negligence. The facts of the case controlling these questions are within a narrow compass, and are so interrelated that a reference to them will suffice for the consideration of all the questions presented by these contentions. The foregoing statement of them makes clear what were the duties assigned Boucher and the' engineer in conducting the defendant’s business at the time of the accident. It is argued that the facts wholly fail to show that the engineer was negligent in managing the engine for the purpose of slacking the coupling chain — 164 — when signaled so to do by Boucher, and that the accident was wholly due to the fact that the decedent deliberately and negligently stepped into a place of obvious and imminent danger. It is undisputed that the car had been shoved into the cinder pit; that it had been blocked; that the engine had come to a stop; that the chain forming the coupling between the car and the engine was taut so that the coupling pin could not be released without slacking; that the decedent was required in the performance of his duty to step between the car and the engine to do the uncoupling; that it. devolved on him to give the signal for slacking the coupling chain to enable him to pull the coupling pin; and that it was the duty of the engineer to move the engine for this purpose when the signal therefor was communicated to him. There is no dispute but that the signal to this effect was communicated to the engineer for this purpose. The switch foreman testifies that the decedent gave' the signal for the “slack of the pin” and that he communicated it to the fireman. The fireman testifies that he communicated it to the engineer and that he thereupon moved the engine forward. The engineer testifies that he received the signal “to slack ahead,” which implied that he was to proceed until signaled to stop. He states that his recollection of the signal is uncertain. He also testifies that he was fully informed that the car had been blocked; that the engine was required to move forward only a few inches to slack the chain in order to loosen the coupling pin; that a movement of a few inches would suffice and was the only movement toward the-car required of the engine; that the last act before moving the engine away from tire car was the uncoupling; and that he fully understood all the facts and conditions of the service in which they were then engaged. The court submitted to the jury the question of whether the engineer under the circumstances was negligent in the management of the engine which resulted in a forward movement of several feet and in contact with the car. — 165 — The point is made that the engineer had a right to move the engine as he did in response to the signal given him. There is dispute, however, as to what signal he received. The jury evidently found that he received the signal to slack the pin, and that this called on him to move the engine, only a few inches. There is evidence of other employees of the defendant in support of this view. Furthermore, the engineer was fully informed of the whole situation and the conditions under which he was acting and knew that he was required to move the engine no more than was necessary to slack the pin. In fact he moved the engine several feet, and thereby brought about the contact between the engine and the ear whereby Boucher was injured. It is evident that the movement of three or four inches of the engine could have been made readily. However, it is claimed that the engineer had no reason to anticipate that an injury would result from the movement made by the engine. The situation apprised him that Boucher was then between the ear and the engine for the purpose of pulling the coupling pin, and that such a movement as was made must result in a collision with the blocked car in the cinder pit. Surely such a movement of the engine was fraught with danger to the decedent, who was in a proper position to perform his service, and the engineer had a reasonable basis for anticipating that an injury might result from such management of the engine. We are led to the conclusion that thé facts and circumstances of the case required that the. question of the engineer’s negligence'in the management of the engine should .be submitted to the jury as was done in the first question , of the special verdict. The court informed the jury that this question included the inquiry as to whether the engineer was negligent in moving the.engine forward to remove the strain from the coupling'chain and thus to free the coupling pin so that it could be pulled. The instructions in this respect fully informed the jury of the scope of this issue — 166 — and of wbat it embraced. The court in calling the jurors’ attention to the evidence on this subject did not restrict the jury to the portion he alluded to, but instructed them to take-into consideration all the evidence bearing on the inquiry so submitted to them. The instructions so given were free from undue restrictions on the jury in their deliberations and in no way misled them. It is contended that the court erred in refusing to instruct the jury to the effect that if the engineer was found guilty of negligence it was not the proximate cause of Boucher’s death, and that his death was proximately caused by his contributory negligence. The court found as matter of law that the decedent was guilty of contributory negligence. The argument is made that the engineer had a right to rely on the fact that Boucher under no circumstances would occupy a place wherein he might be caught between the drawbars of the car and the moving engine and thus meet certain death, unless he deliberately placed himself in this obviously and imminently dangerous position. Is this a legitimate deduction from the facts and circumstances of the case? We do not so- regard it. Boucher’s conduct must be considered in the light of the situation as disclosed by the facts and circumstances under which he performed his duties. It is clear that he took a position between the car and the engine where he could readily grasp and pull the coupling pin from the coupling device of the car, and that he pulled the pin and thereby caused the chain to drop. The jury from the evidence must have found that in-giving the signal to “slack the pin” he called for a forward movement of the engine of but a few inches. In his position between the car and the engine his back was turned toward the-engine, and there was sufficient space for him to pass between the drawbars of the car and the engine. Having given the-signal to the engineer- to- come forward with the engine sufficiently to slack the pin, he, in the exercise of reasonable care, might well anticipate that the engine would move no farther — 167 — than required for this purpose. While he cannot be deemed free from blame in not looking to see if the engine was approaching, it does not appear but that he may have taken the step to complete his duti.es> and that in the ordinary course of discharging his duties he got into this space through very slight inadvertence, or that the physical condition of the track may have caused him to take this step. All this refutes the assumption that he deliberately placed himself in a place imminently dangerous to his life. Erom the situation thus presented it cannot be said that the duty to protect himself against the hazards incident to the engineer’s conduct rested solely on Boucher and that the engineer was free from legal responsibility as to the result. Erom the very nature of the situation and corresponding duties of the two men to guard Boucher against injury it may be said that the negligence of the engineer was of a graver and weightier character as a contributing cause to Boucher’s death than that of the decedent. After careful examination of the evidence and much reflection we have become persuaded that the facts of the case are not so clear upon the issue of the engineer’s negligence and its proximate contribution toward causing Boucher’s death, and upon the question of whether the decedent’s contributory negligence was slighter or greater than that attributable to the defendant, as to require determination of them by the court as matter of law. The court properly submitted them to the jury. It is strenuously argued that the jury cannot determine from the evidence whether Boucher’s death was caused, in greater part by the negligence of the defendant as compared with his contributory negligence, and hence that the plaintiff has failed to establish her cause of action. In support of this claim the contention is made that the burden is on the plaintiff to establish a cause of action, and that the evidence fails to show any grounds justifying Boucher’s stepping between the drawbars, and he must therefore be held to have taken this step knowing it meant certain death. The facts and circum — 168 — stances of this situation already adverted to we think negative this claim, and show that the jury could have found that he entered this space through slight inadvertence, and that the conduct of the engineer in comparison therewith may be considered a weightier and graver default. The provisions of tlie statute regulating these questions and the province of the court and the jury under them were considered and interpreted in the cases of Kiley v. C., M. & St. P. R. Co. 138 Wis. 215, 119 N. W. 309, 120 N. W. 756, and Zeratsky v. C., M. & St. P. R. Co., post, p. 423, 123 N. W. 904, and therefore need not be repeated here. An exception is urged to the testimony of Dr. Pullen for the reason that it was immaterial and from its nature operated to prejudice the jury in a controversy of this kind. We discover nothing prejudicial in the evidence. So far as received it was relevant to the inquiry as to how Boucher came to his death. It is urged that the court erred in denying defendant’s motion to strike out the evidence of the engineer’s negligence in moving the engine as not within the allegations of the complaint. The allegations of the complaint charged the engineer with carelessly and negligently operating the engine by causing it to move forward at a dangerous speed and for a distance imperiling the decedent’s safety and thereby causing the injury. The evidence offered was relevant and material to these allegations. The objection that the questions of the special verdict did not properly cover the litigated issues and that they were so framed as to mislead the jury is not sustained. As heretofore indicated, the phrase in the first question, “slacking the pin,” was properly explained and defined by the court’s instruction as covering the inquiry respecting the negligent movement of the engine under the engineer’s management. The objections to the second and fourth questions are based on the idea that Boucher’s negligence was the sole proxi — 169 — mate cause of Ms injuries, and that tbe court should have so ruled as matter of law. Tbe foregoing consideration of tbe facts disposes of these objections. Tbe requested questions for tbe special verdict relate to tbe same subject and were properly refused. Tbe validity of ch. 254, Laws of 1907, is merely suggested. The decision in Kiley v. C., M. & St. P. R. Co., supra, is determinative of this question. Numerous detailed portions-of tbe instructions given to tbe jury are called to our attention as erroneous and prejudicial. Many of them pertain to tbe questions considered above, and were not subject to tbe criticism made in view of tbe foregoing considerations and our conclusions as to those questions. Tbe fourth question is assailed as incorrectly framed under tbe statute, in that tbe words “less or greater” were used, instead of tbe words “slighter or greater,” in determining decedent’s negligence as a contributing cause in comparison with that attributable to tbe company. We discover no cause for complaint in this. Tbe word “less” as here used conveyed tbe same idea to tbe jury as tbe word'“slighter” as used in tbe statute. Defendant urges that a new trial should have been awarded because an impartial trial was denied it, and avers that this was occasioned by tbe improper arguments and comments concerning the evidence and fictitious issues used by tbe plaintiff’s counsel before tbe court and jury, by improper comments on tbe evidence and admonitions to witnesses by tbe court, through the order of tbe court that tbe witnesses be kept in a room separated from tbe courtroom, by permitting tbe jury to view the premises, and by plaintiff’s manner of conducting tbe case. It is claimed that tbe plaintiff’s manner and method of eliciting proof and of bringing immaterial and irrelevant matters to tbe attention of tbe jury were calculated and did operate to prejudice tbe defendant. We have examined all of — 170 — these points and find nothing in tbe record showing that any prejudice resulted in any respect The record discloses that-the parties had a full, fair, and impartial trial. The damages awarded are alleged to be excessive. It is claimed that the court in reply to a comment by counsel to the jury confused ’ and misled the jury by the following observation : “The question is: How much pecuniary loss has the relative suffered — that is, in this case, the wife and children of the deceased suffered — by reason of the death ?” When the court submitted the question of damages to the jury they were instructed: “You are not warranted in giving damages not founded upon testimony, nor can you go beyond compensation for the pecuniary injury to the wife.” The court in effect repeated the information that damages could only be allowed the wife to compensate her for the injury caused her by her husband’s death and properly specified' the elements entering into her loss. We are satisfied that the jury were thereby fully informed of the correct rule of damages, and that any misconception which might have existed as-a result of the first statement made by the court was fully corrected. The damages were found at the sum of $7,500. The jury is given a broad discretion in assessing damages. The trial court confirmed the verdict. This is of weight in such cases. We are of opinion that the facts and circumstances of the case authorized the jury to assess the amount awarded. Ryan v. Oshkosh G. L. Co. 138 Wis. 466, 120 N. W. 264. We find no reversible error in the record. By the Court. — Judgment affirmed.