108 Wis. 530 | Wis. | 1901
It is rightly contended by appellant’s counsel, and conceded by counsel for respondent, that unless as a matter of law, on the evidence, the engineer stood towards the respondent in the master’s place, charged with its duty to furnish him a reasonably safe place in which to perform his work, as regards the guarding of the lubricator glass, and there was reasonable ground on the evidence for the finding that he submitted himself to the risk which resulted in his injury upon the faith of the engineer’s promise to perform that duty, and was not guilty of any want of ordinary •care in so doing, the judgment is wrong. The jury did not find whether the engineer and respondent were fellow-servants in respect to the matter stated. Perhaps no finding was necessary. Probably it should be said that the evidence bearing on the subject is undisputed and that the inferences that may reasonably be drawn therefrom are not conflict
Generally speaking, all trainmen, from engineer, to the humblest employee, are fellow-servants and only such. Howland v. M., L. S. & W. R. Co. 54 Wis. 226; Heine v. C. & N. W. R. Co. 58 Wis. 528; Fowler v. C. & N. W. R. Co. 61 Wis. 159; Pease v. C. & N. W. R. Co. 61 Wis. 163; Southern Fla. R. Co. v. Price, 32 Fla. 46; Ohio & M. R. Co. v. Tindall, 13 Ind. 366; Clifford v. O. C. R. Co. 141 Mass. 564; Elliott, R. R. § 1330. To take the situation in question out of that general rule requires evidence to the effect that the furnishing of the guard for the lubricator glass was not only the duty of the master — a duty distinct from those minor details of business which may be left to servants, as such, to attend to — but that the master intrusted such duty to the engineer. AVhere the evidence is to that effect, as before indicated, does not clearly appear. It may be that the idea of the trial judge was that since the engineer was superior in grade of service to his fireman, the relation of master and servant existed between them. Rut that is not the test, as. is abundantly shown by the adjudications of this court above cited. Mere rank has nothing to do with the question. The test is the nature of the act in which the persons are engaged. Cadden v. Am. S. B. Co. 88 Wis. 409; Dwyer v. Am. Exp. Co. 82 Wis. 307; McMahon v. Ida M. Co. 95 Wis. 308. Under that rule a foreman, or other person superior in authority and responsible to another as master, and the men under him, so far as relates to the work in which they are jointly engaged, though in different capacities and though such foreman or other person has authority to hire and discharge such men, are fellow-servants. But we will not pursue this subject further or decide this branch of this case. Some attention has been given to it so the case will not be referred to hereafter as holding that in such a situation as the one in
We may now proceed to the next and vital point in tha case on the assumption, for the purposes of the decision, that it was actionable negligence for defendant to leave the lubricator glass unguarded; that the duty to attend to that matter was intrusted to the engineer; that as the engine left the engine house respondent objected to continuing in defendant’s service unless it was attended to, and that tha engineer then promised to do so.
Now it is claimed bjr counsel for appellant, and conceded by respondent’s counsel, as is the law, that if an employee object to continuing in the service of his master because of some danger attending the same which it is the duty of the latter to remedy, he may, relying upon the master’s promise to perform that duty, remain in such service for such reasonable length of time as may be required for that purpose, if the danger be not so obvious and immediate that from his standpoint it should be remedied at once; yet when such reasonable time shall have expired and the servant knows, or by the exercise of ordinary care ought to know, that the danger still exists, if he remains in the service and subjects himself to such danger he is chargeable with that form of contributory negligence known as assumption of the risk and is remediless for any injury that thereafter happens to him thereby.
When did the time expire within which the engineer should, in all reason, have redeemed his promise to place a guard upon the lubricator glass ? The trial court seems to have determined from the undisputed evidence, as a matter of law, thafiit expired when the engine left the Milwaukee depot to go on the trip. That is clearly shown by the way the special verdict was-framed. It contains findings favorable to respondent in regard to whether the engineer placed a shield upon the lubricator glass before the engine started
That the promise should have been redeemed before the engine left Milwaukee, and that respondent so expected if he had any expectation that the lubricator glass would be guarded for the trip he was about to make, is too clear for reasonable controversy. There was no need for submitting that question to the jury, nor any other question bearing on the subject. The evidence was all one way that respondent had no personal interest in the condition of the lubricator except for the trip he was about to enter upon. He had never before been out with that engine, and of course did not know that he would be called upon to do so again. The place to procure the shield was at the roundhouse in the city of Milwaukee, which the engine was leaving when the promise was made, and to which it did not thereafter return. A few moments after the promise was made, and without any absences of the engineer to give respondent ground to believe that he had made a trip back to the roundhouse, the engine moved to the vicinity of the Milwaukee depot, a considerable distance away, and there it remained
The verdict of the jury, to the effect that the time for removing the danger complained of had not expired when the accident occurred, is certainly without any evidence to support it. That finding is the only one directly on the subject of when the period covered by the promise expired, though, as before indicated, the way the verdict as a whole was framed shows that the trial court’s view was, as the fact is, that such period can by no stretch of reason be extended into the time when the engineer no longer possessed the means of redeeming his promise before leaving the city of Milwaukee on the trip.
The conclusion from the foregoing is that, by going out on the trip under the circumstances, respondent assumed the risk of the condition of the lubricator, if he knew or ought to have known that the engineer had failed to keep his promise. The jury said he did not know that fact when the trip commenced, and that he proceeded relying on the promise. It is impossible, in our view, to find any reasonable ground in the evidence for those findings. They are contrary to all reasonable probabilities and contrary to the evi•dence of respondent. He regarded the absence of the shield as rendering his working place exceedingly dangerous. He knew that such absence was liable to result at any instant, and without any warning whatever to enable him to avoid it, in inflicting upon him a serious bodily injury. Every
If respondent had testified that he looted at the lubricator and did not observe the absence of the shield, or, without having affirmatively testified that he so looked, had testified that he did not know of the absence of the shield at any time after the engineer’s promise was made, the situation would not be changed. The finding of the jury would still be against all reasonable probabilities. But he did not so testify. His testimony is rather to the effect that he did know the true situation all the time up to the instant of the injury. He seems to have appreciated, in giving his testimony, the extreme improbability of a person circumstanced ás he was being ignorant of those things which were almost before his eyes; so he contented himself in saying that he ■did not pay any attention to the condition of the lubricator. Counsel for defendant tried patiently, by a long and fair cross-examination, the record of which occupies many pages •of the printed case, to obtain a direct answer from respondent as to whether he knew when the engine left Milwaukee that there was no shield upon the lubricator glass; and the trial judge participated to the same end, endeavoring by repeating the counsel’s question and striking out nonrespon-sive answers and commanding the witness to answer responsively; still he persisted in saying that he did not pay ■any attention to the matter. After the many evasive answers referred to, the witness’s attention was called to his examination under oath on a former occasion, and he then .admitted that the following questions were there propounded to'him and that he gave the following answers thereto: Q. Ho you swear that you did not see whether or not there was a shield on when your engine left the city of Milwaukee that night? A. After I spoke to the engineer about
"When the time expired for the engineer to redeem his promise, under the circumstances indicated, respondent was no longer protected thereby in his right to hold defendant responsible for the consequences of the danger, if it be conceded that the promise had that effect at all. In proceeding thereafter in defendant’s service, he voluntarily assumed the risk of which he had complained, as a part of his contract of employment, and is remediless for what followed.
By the Court.— The judgment of the superior court is reversed, and the cause remanded for a new trial.-