120 Wis. 412 | Wis. | 1904
This cause of action depends for its existence ■upon statutes of Minnesota, certainly upon sec. 5913, Gen. Stats. Minn. 1894, which covers tbe same general field, and in general effect is tbe same as sec. 4255, Stats. 1898, both being in adoption of tbe English legislation of 1846 known as “Lord Campbell’s Act” (9 & 10 Viet. 93) ; tbe Minnesota statute, however, by construction, conferring tbe right of recovery although tbe beneficiary be an alien. Renlund v. Commodore M. Co. (Minn.) 93 N. W. 1057. Possibly tbe right of action also depends on see. 2701, Gen. Stats. Minn. 1894, imposing liability on railway corporations for injuries to their employees by negligence of a coemployee. This statute in terms imposes liability to any employee injured, without contributory negligence, by tbe negligence of any coem-ployee, without limitation as to tbe character of either tbe -employment or tbe risk; but in its application it has been construed by tbe supreme court of Minnesota as imposing -sucb liability only for injuries resulting from exposure to hazards peculiar to tbe repair and. operation of railroads
The other phase of negligence claimed to make defendant liable is that of the employee charged with the duty and control of the removal of these cars, and who caused the movement which injured the deceased. The evidence as to his conduct is conflicting, but there is testimony tending to prove that he passed through the building from end to end to see that no “toe boards” or skids were in place between the floor of the warehouse and the cars; that he saw and spoke to decedent and his helpers; that at that time one of the gang was
Substantially the same considerations apply to the claimed' assumption of the risk. Deceased, of course, assumed the risk resulting from such facts as he knew and such as were obvious to ordinary care and prudence. lie undoubtedly assumed any risk from the proximity of the stationary cars, but he did not assume the risk of the cars being set in motion without warning, unless he knew, or ought to have known, there was some likelihood of such event. That he had any such knowledge or means of knowledge was, as already stated, not established beyond controversy.
Respondent further urges that, even after the cars were set in motion, decedent might have escaped from his position and into the building before the wide car reached and crushed him. As to his opportunities and conduct, the evidence is confused. The only feasible means of escape were either stepping up some twenty-two inches onto the wall he
From all that has preceded, our conclusion is obvious that the circuit court should have submitted to the jury the questions of defendant’s negligence and of contributory neglh gence on the part of plaintiff’s decedent, including assumption of the risk, and that error was committed in directing verdict for the defendant.
By the Gourt. — Judgment reversed, and cause remanded for a new trial.