Cottrill v. Chicago, Milwaukee & St. Paul Railway Co. , 47 Wis. 634 ( 1879 )

Oetoít, J.

The jury found that the carelessness of the employees of the defendant materially contributed to tlie injury of the plaintiff; and therefore the following findings relating to the carelessness of the plaintiff need only be considered in determining the correctness or incorrectness of the judgment:

“ Did the carelessness of Cottrill, deceased, materially contribute to the result complained of?” “ Yes.”

“ Could Cottrill, after seeing the signal to stop, and reversing his engine, in the exercise of ordinary care and prudence, have gotten off from his locomotive before the collision? ” “Yes.”

“ Could Cottrill have pulled his train out upon the go-out track, instead of the come-in track, and switched his cars by so doing?” “Yes.”

“ If Cottrill had moved his train of 33 cars upon the go-out track, at the time he was going out, would he not have been in danger of the train going out on the Prairie du Chien track at 8:50?” “Yes.”

These special findings must be presumed to be all the facts found by the jury upon which the carelessness of the appellant was predicated; but, if such was not the presumption, there appear to have been no other acts or omissions of the appellant proved which show any carelessness on his-part.

Treating these two last findings as still leaving the inference that the deceased was negligent in not taking the go-out track, notwithstanding the danger of a collision on that track with the Prairie du Chien train, as contended by the learned counsel of the respondent — which, to say the least, is very questionable, — the only other finding on which the general finding of the carelessness of the deceased was or could be predicated, is, that in the exercise of ordinary care and prudence he could have gotten off from the locomotive after the signal to stop, and after reversing his engine, and thus have escaped danger. Did Ms failure to jump off from the locomotive at the time and under the circumstances constitute such negligence on his part as to prevent a recovery %

It was in evidence that his fireman, on seeing the danger from a collision, jumped off and landed on the ground safely, and that the last he or anybody saw of the deceased, he was standing up in front of the boiler, and had the reverse lever in his right hand and the throttle in his left, and while he was in this attitude the collision took place, and by the concussion the tender was driven forward and against the deceased, and confined and crushed him against the hot boiler, and by this means, after great agony and suffering, he was killed.

According to the common appreciation of human conduct and character, this evidence presents an example of heroic bravery and fidelity to duty at the post of danger, most praiseworthy and commendable, and an occurrence worthy of lasting record in the book of heroic deeds. The very employment of the locomotive engineer, with its manifold and sudden and unexpected dangers, requires the highest type and best qualities of true manhood, invincible bravery and great integrity; and it is but just to say that, as a rule, those who are selected for and engaged in this responsible employment, possess the full measui’e of these qualities, and the exceptions are very rare.

They are not men likely, to jump off -.from their locomotive and run away to escape, uncertain danger, or to .omit any duty in sudden emergencies; and it is well that they are not. They are placed in charge of one of the mighty forces of nature, held in servitude by the most dangerous and intricate machinery, and great skill, unremitting attention, sleepless vigilance and fearlessness of danger are required to keep them in constant control. Their standard of ordinary care and prudence must be fixed and measured by the dangers and responsibilities of such an employment, and not by the common accidents of less responsible service. The question which should determine their reasonable care, or want of common care, is, how careful and prudent locomotive engineers would ordinarily and commonly act at such a time, in such a place, and under such circumstances, and not how firemen or other employees would or should. To hold as matter of law in this case that the deceased was guilty of a want of ordinary care and prudence, as the engineer in charge of the locomotive and of the train, in not jumping off at this crisis and abandoning his engine, from the mere apprehension of uncertain danger, would make a legal precedent very dangerous to the railway service in life and pi’operty, and by which it would be exceedingly difficult, if not impossible, to distinguish the cases and the circumstances in which it would or would not be the duty of an engineer to jump off and desert his engine, or to determine in point of time when he should do so, and the necessity or prudence for him to do so.

Can it be said in this case that the deceased had reason to know, or the means of knowing, that by remaining at his post he would be injured, and that by jumping off he would not? Who shall sit in judgment upon this brave engineer to coolly determine the alternative risks and- chances which he is compelled to take instantly, with scarcely a moment of time for deliberation in such a terrible emergency. It will not do to establish a rule by which the duty of an engineer in such an emergency may be measured and dictated by cowardice and timidity, and by which his standing at his post and facing danger will be carelessness and negligence. The defense resting upon such a theory in this case cannot be sanctioned, although cases may possibly arise in which even the common prudence of an engineer might require him to leave his' engine to escape danger; but such cases will be rare exceptions, and depend upon very peculiar circumstances.

In the case of Rood v. The Am. Ex. Co., 46 Wis., 639, this court very recently refused to disturb the verdict of the jury when they found that the driver of a vehicle in the street, in collision with another vehicle, was careless because he jumped from his wagon and let go of the lines of his team. The jury may have found the negligence of the deceased to have consisted solely in his not jumping off from his engine; and from the two questionable and nearly contradictory findings upon the question whether he might not have taken another track, they probably did so find. Such a verdict did not warrant the judgment.

By the Go tort. — The judgment of the county court is reversed, with, costs, and the cause remanded for a new trial.