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

Jones, J. It was alleged in the complaint that both Wulz and the defendant were engaged in interstate commerce. But it is now claimed by plaintiff’s counsel that the federal act does not apply. The cars on which Wulz worked were engaged in interstate commerce. Although deceased had finished repairing the cars, it was early in the day, and he was on his return to report to the foreman when the accident occurred. We are convinced that the trial court was right in holding that Wulz was engaged in interstate commerce at the time of the accident. In the trial court plaintiff relied on Ill. Cent. R. Co. v. Peery, 242 U. S. 292, 37 Sup. Ct. 122, where the conductor, on a south-bound trip, where he was injured, was on a train doing interstate business, and on the return trip (south) was on a train engaged in purely intrastate business. The court held that the trips' out and back were distinct, in opposite directions, and with different trains, and that the case did not come within the provisions of the federal act. In the present case the return of Wulz from-his work in interstate commerce was but a continuation of the task he had to perform when'he started from Corliss and not completed until he reported back at Corliss for further instructions. " It is not necessary that the workman be working — 193 — upon a car or siding or on a train engaged in interstate commerce when the injury is received in order to bring him within the provisions of the federal act. If the act performed when the injury occurs is upon an indivisible task connected with interstate commerce, it is sufficient. The principle is well illustrated in a recent case where the court said: “In leaving the carrier’s yard at the close of his day’s work the deceased was but discharging a duty of his employment. See North Carolina R. Co. v. Zachary, 232 U. S. 248, 260, 34 Sup. Ct. 305. Like his trip through the yard to his engine in the morning, it was a necessary incident of his day’s work and partook of the character of that work as a whole, for it was no more an incident of one part than of another. His day’s work was in both interstate and intrastate commerce, and so when he was leaving the yard at the time of the injury his employment was in both. That he was employed in interstate commerce is therefore plain, and that his employment also extended to intrastate commerce is for present purposes of no importance.” Erie R. Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556; Shanks v. D., L. & W. R. Co. 239 U. S. 556,.36 Sup. Ct. 188; Erie R. Co. v. Welsh, 242 U. S. 303, 37 Sup. Ct. 116. The decision of the question whether the employment was within the federal act is necessary, since under that act, if the negligence of plaintiff and defendant proximately concur in causing the injury, contributory negligence on the part of plaintiff is not a complete defense; it is only a question of apportionment of damages. Kalashian v. Hines, 171 Wis. 429 (177 N. W. 602) and cases cited on p. 439. Counsel for plaintiff base their claim of negligence of the engineer on the fact that he did not stop the train. There are several serious objections to the finding of the jury that this was negligence. The case is barren of any proof that it had been the custom of the deceased to ride on the engine with the knowledge of the engineer or fireman or any officer — 194 — of the company. There is no proof that trains had ever been stopped to receive him while going to or from his places of employment. There was a rule of the company as follows: “No one except the roadmasters, track foremen on train section, conductor or brakeman of the train will be allowed to ride on the engine without permission from the superintendent or master mechanic.” The deceased had no permit whatever. These facts clearly distinguish the case from some of the cases like Kunza v. C. & N. W. R. Co. 140 Wis. 440, 123 N. W. 403, where a regular custom had existed to allow the employee to ride upon the engine. In the absence of any proof that Wulz had previously been permitted to ride upon the engine and in the face of the positive rule of the company, the jury was not justified in deciding that it was the duty of the engineer to stop the engine for that purpose. Spencer v. C., M. & St. P. R. Co. 161 Wis. 474, 154 N. W. 979. It is clear from the testimony that the engineer desired to accommodate one of the employees of the company and expected Wulz to board the engine. The train was moving hardly faster than a man could walk, and if deceased had not been incumbered by his tools no assistance would have been necessary. In view of the situation the engineer directed the fireman to assist Wulz in getting on, but evidently neither the fireman nor the engineer expected that deceased would suddenly pass into the zone of danger where he might be struck by a south-bound train on another track. In this connection it is an important fact that Wulz was not killed by the freight train while attempting to board it. He was struck by the passenger train while attempting to place his tools upon the pilot of the freight train. The real issue on the question of defendant’s negligence seems to be, not whether the train should have beén stopped to enable Wulz to board it, nor whether insufficient assistance was given for that purpose, but whether the train — 195 — should have been stopped to permit Wulz to use the pilot as he tried to use it. Even if there had been a duty to stop the train to enable Wulz to board it, by reason of a former practice or custom, it could not be seriously claimed that there was any duty to stop it for so unusual and unexpected a use as was attempted. The argument is made by plaintiff’s counsel that it was negligence not to stop the train because the engineer realized that there might be injury to Wulz if he made a' wrong move and entered on or approached too near the track of the passengér train. It is not contended that an engineer must stop his slowly moving train merely because he sees an employee walking toward him on the same track. It would be laying down a new and very rigid rule that a train must be stopped at depot grounds under such circumstances, or that it is a question for a jury to decide. In respondent’s brief we are referred to Scheuer v. Manitowoc & N. T. Co. 164 Wis. 333, 159 N. W. 901, where the motorman of an electric car saw that the driver of a team beyond his control was near the zone of danger, and might have stopped the car in time to avoid the collision. Plaintiff also relies on the case of Kalashian v. Hines, 171 Wis. 429, 177 N. W. 602, where the plaintiff, with his head turned away, approached the track at a diagonal, which, if continued, was bound to bring him within the zone of danger, and where the jury found that no warning was given. In these cases it was held that there was a jury question, but they do not seem to us. to be controlling. The engineer did everything possible without stopping the train to warn Wulz of any possible danger. He had no reason to expect that deceased would suddenly turn in the wrong direction, in close proximity to the track of the passenger train, or that he would attempt to use the pilot of the moving engine as a place for depositing his tools. The burden rested on the plaintiff to prove not only that defendant was negligent, but also that such negligence was — 196 — the proximate cause of the death. This is under .the familiar maxim that the law regards the proximate, not the remote, cause. Doubtless the immediate cause of the death was that Wulz stepped in front of, or stumbled against, the passenger train. Notwithstanding this, there might be such a combination of circumstances that this intervening cause would not prevent liability if the negligence of the engineer of the freight train were established. The celebrated case where a squib was thrown down in a market place and caused injury, and many others, might be cited as illustrations of the principle that where .one event, according to human experience, is likely to be followed by another event, the person whose wrongful act caused the former event is responsible for the consequences which may flow from the latter. The rule is based upon the fact that the wrong-doer, using reasonable diligence, should have foreseen the result. Under such circumstances the original act still continues the direct and proximate cause and not one which is improbable and remote. “The question always is, Was there an unbroken connection between the wrongful act and the injury — a continuous operation? Did the facts constitute a continuous succession of events, so' linked as to make a natural whole; or was there some new and independent cause intervening between the wrong and the injury?” 1 Thompson, Comm, on Neg. (2d ed.) p. 55, § 52; Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 474; Lynn G. & E. Co. v. Meriden F. Ins. Co. 158 Mass. 570, 33 N. E. 690. In this connection it has been often held that it is not necessary to create liability that the injury in the precise form in which it in fact resulted should have been foreseen. It is enough that it now appears to have been a natural and probable consequence. Huber v. La Crosse City R. Co. 92 Wis. 636, 66 N. W. 708; Hill v. Winsor, 118 Mass. 251; Schumaker v. St. P. & D. R. Co. 46 Minn. 39, 48 N. W. 559. — 197 — Applying these familiar rules to the instant case, do we find that the alleged negligence of the engineer in failing to stop the train was the efficient and proximate ca,use of the injury ? It seems clear to us that in the use of reasonable diligence and care he was not bound to anticipate that the deceased would undertake the very unusual and extraordinary act of placing his tools upon the pilot of the moving engine. His movements in passing from a place of safety into proximity to the other track, in attempting to use the engine pilot as a place for depositing his tools, in being so overbalanced as to step or fall upon the other track, were all unforeseen by and beyond the control of defendant or any of its employees. These movements of the deceased were the intervening and independent causes without which the accident would not have happened and for which defendant was not responsible. Defendant’s counsel urge that there was such an assumption of risk as precluded a recovery. Assumption of risk is a defense under the federal act. But since we hold that the judgment should be reversed on other grounds, it is not necessary to decide this question. By the Court. — Judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the complaint on the merits..