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

[459] The following opinion was filed March. 17, 1914: Wisrsnow, O. J. Upon the argument in this court the objection was for the first time made that the case was one within the federal act, i. e. that the death of the testator occurred while he was employed in interstate commerce, and hence that the trial of the case under the provisions of the .state law was a mistrial, and the judgment must in any event be reversed. This is the identical question raised and disposed of in the case of Leora v. M., St. P. & S. S. M. R. Co. 156 Wis. 386, 146 N. W. 520. Under the principles stated in that case it must be held here that the objection has been waived by reason of the fact that it was not raised in the trial court. We do not, therefore, consider the question whether the death of the testator occurred while he was employed in interstate commerce or not. The appellant’s chief contention on the merits is that there was no proof of negligence on the part of the defendant or its agents who were operating the train. We find this claim untenable. A rule of the company is as follows: “Elying switches are forbidden except at spur sidings.” It is true that there was evidence from a number of witnesses that the movement made in the present case, though formerly called a flying switch, was no longer called a flying switch but a drop switch. There was, on the other hand, competent and credible evidence from at least one expert witness that the movement made in this case was in fact a flying switch. Examination of adjudicated cases will show that any movement of the train in switching whereby, when the train is in motion, a part of it is cut off, increased speed given to the engine, the detached cars also kept in motion and following the engine at a less speed and allowed to run on to a switch track, has been understood to be a flying switch. Magner v. Truesdale, 53 Minn. 436, 55 N. W. 607; 3 Words & Phrases, 2853. [460] There is indeed a more complicated flying switch movement which occurs when there is a second detached part of the train kept in still slower motion following the cars to be switched, and this is said by the defendant’s witnesses to be the only train movement which is now called a flying switch. However, there was sufficient evidence to sustain a finding that the train movement in the present instance was a flying switch within the meaning of the rule. If it was, then it was a prohibited movement, and the fact that it was made amply supports a finding of negligence on the part of the conductor or engineer, who was responsible for its being made. That there was ample room to find that this negligent movement of the train proximately contributed to the death of Hanson cannot be questioned. The jury found, in substance, that the deceased was guilty of contributory negligence, but that the negligence of the defendant’s agents was greater and contributed in a greater degree to produce the accident than the negligence of Hanson. The question as to whose negligence contributed in greater degree to produce the injury is peculiarly a jury question, and we cannot say that the finding of the jury thereon is against the evidence. There is but one further contention which requires notice. It appears that in opening the case to the jury plaintiff’s counsel stated, as one of the facts which they intended to prove, that Hanson was sitting down on the rear of the fifth car and when the train slacked up pulled the pin, and that the train was then jerked forward violently and he fell to the ground. When the evidence came in on the trial, the brakeman Lake, who in fact pulled the pin on car number 4, testified that he saw the deceased apparently reaching to pull the pin on car number 5, but that it was not in fact pulled. Another witness who was peeling ties just east of the track and about 100 feet south of the place of the accident, testified that he saw deceased sitting on the rear end of car number 5 with [461] his back to the engine, his feet hanging down, and his left hand holding the brakestaff, when the jerk came and he fell off. After this testimony came in plaintiff’s counsel adopted the theory that deceased did not try to pull the pin, and defendant’s counsel became anxious, on the other hand, to convince the jury that at the time of the accident the deceased was attempting to pull the pin, thus making himself a volunteer. Just as the evidence closed the defendant offered the opening statement aforesaid in evidence as an admission on the part of the plaintiff. Plaintiff’s counsel said he had no objection to its appearing on the record that he made that statement to the jury, and the court ordered that the record should show that the statement was made just as claimed, but that the objection to it as evidence was sustained. It further appears that in his argument to the jury defendant’s counsel commented on the statement so made a part of the record. It is impossible to see how the defendant has suffered any prejudice even if it were to be conceded that the statement should have been formally received in evidence, a matter not necessary to be decided. Plaintiff’s counsel frankly admitted that he made the statement, and defendant had the benefit of that admission just as fully as he would have had it had the statement been ordered to be received in evidence. We find no prejudicial error in the record. By the Gourt. — Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on June 17, 1914.