71 Wis. 114 | Wis. | 1888
Upon the argument of the appeal in this court it was not deemed by the learned counsel for the respondent that there was sufficient evidence in the case to sustain a verdict in favor of the respondent on the ground that the defendant was guilty of negligence in furnishing him unsuitable or unsafe machinery for doing his work, or that the company was guilty of negligence in employing a
The only ground for sustaining the verdict in favor of the plaintiff relied upon by the learned counsel for the respondent is that, at the time the plaintiff was directed to do this switching by the company, he was not employed by the company to do such work; that the work of switching in the yard of the defendant was dangerous work, and that the plaintiff was not accustomed to do such work, nor was he acquainted with the danger incident thereto; and that in such case the defendant is liable for the injury if the injury was caused by the negligence of the engineer in charge of the engine, or by a defect in the machinery, whether such defect was known to the defendant company or not. If this rule be as claimed by the learned counsel for the respondent, the findings of the special verdict are perhaps sufficient to sustain the verdict, when aided by the undisputed evidence in the case. By an examination of the
The theory of the learned counsel for the plaintiff is that where the master directs his employee temporarily to perform work not contemplated by his contract of employment, and such work is of a dangerous character,— whether more dangerous than his general employment or not is immaterial,— the master becomes liable to protect him while so employed against the carelessness of -his employees, and also against any injury he may receive on account of defective machinery, whether the company have any previous knowledge of the defect or not. He claims that the basis of recovery in such case lies in the fact that the master directs the employee to perform a work outside of his usual
In order to sustain the judgment in favor of the plaintiff in this case, we think it will be necessary to adopt the rule as stated by. the learned counsel to its full extent, because the questions as to whether the temporary employment was more or less dangerous than the ordinary employment of the plaintiff, or whether the defendant was guilty of negligence in directing the plaintiff to do the work in the doing of which he was injured, were not submitted to the jury. The negligence of the defendant upon which the action must be sustained if sustained at all, consists in his directing the plaintiff to do the work, and under that rule the question as to the knowledge of the employee of the dangers incident to the work to be done, or his want of knowledge, would be wholly immaterial.
"We are very clear that the broad rule contended for by the learned counsel for the respondent is not sustained by the authorities, nor by the general rules of law which define the relations of the employer and employee. Some of the cases cited by the learned counsel for the respondent may have some general statements in the opinions which give some countenance to the rule as stated by counsel, but when the facts of each case are considered it will, we think, be found that no such broad rule was ever intended to be sanctioned by any of the courts. Whether the employer is
In order to make the employer responsible for an injury to his employee while in his employ, the evidence must in every case show that the employer has neglected some duty which he owes to the employee; and no case can, we think, be found where it has been held that the mere fact that the employer requested his employee to perform a temporary work, outside of his ordinary employment, was a violation of any duty which he owes to his employee. Whether it be a violation of such duty depends always upon the surrounding circumstances. If the particular work ordered to be done is of a dangerous character, and one which requires peculiar skill in its performance, and the person directed to perform such work has not the requisite knowledge or skill for doing the work with safety, and such want of skill or knowledge is known, or might be reasonably supposed to be known, to the employer, in that case the direction of the employer to do the work might be justly held to be a violation of a duty which he owes to his employee, even though'the employee undertook to do the work without objection or protest upon his part. None of the cases go further than this, and we can see no reason for holding a stricter rule. Counsel says it is well settled that “ the employee assumes all the ordinary risks within the scope of his employment.” To this proposition no exception can be taken, and there is no need of the citation of authorities to sustain it. It is urged that the converse
In the case in 28 Ind. 374, the court reversed the trial court on the ground that the employee, a minor’, assumed the risk of his employment. In Pittsburgh, C. & St. L. R. Co. v. Adams, 105 Ind. 151, the court state the rule as follows : “ In all cases the master is bound to disclose to the servant latent defects and dangers of which he has knowledge, or of which he ought to have knowledge by the exercise of reasonable attention, care, and diligence, and of which the servant has no knowledge, and would not discover by the exercise of reasonable care. This is particularly .so when the master employs for hazardous and dangerous work a child, young person, or other person without experience and of immature judgment.” “In the cases last above mentioned the gravamen of the action is the negligence of the master in failing to give the proper warning, and in employing a person of such immature years and judgment that such warning and instructions
We have cited at considerable length from this case, as it goes as far to uphold the rule as claimed by the learned counsel for the respondent, if not further than any of the other cases cited by him on the argument. And in this case the last paragraph qualifies all that is said before, and destroys the rule as contended for by the learned counsel. It leaves it, as stated above, a question of fact in all cases whether the master is guilty of negligence in directing the servant to do the act outside of his employment.
In Lalor v. C., B. & Q. R. Co. 52 Ill. 401, it was found that the person representing the master knew that the employee whom he directed to couple the cars was unversed and inexperienced in that business. The decision is clearly placed on the ground that the master was guilty of negligence in directing a servant to do an extra-hazardous work whom he knew to be unskilled and inexperienced in the business. In Jones v. L. S. & M. S. R. Co. 49 Mich. 573, the person who was injured while employed in the discharge of work not within the contract of his employment, showed that he protested against doing the work. In Chicago & W. W. R. Co. v. Bayfield, 37 Mich. 205, the instruction at the trial which was upheld as good law, was as follows: “ If you find that the deceased, at the time he was employed by the defendant, was a lad of seventeen or eighteen years of age, inexperienced in handling the brakes on a train of cars such as that in question, and that he was unfitted for that work by reason of his unskilfulness, inexperience, and youth, and this was known to Smith, . . . and was ordered by Smith, the foreman and conductor of the construction train in question, acting for and as the agent of said defendant, then if he was killed while endeavor
We think that it may be safely said that none of the cases cited by the learned counsel for the respondent bold that merely directing a servant to perform a duty outside of his usual employment is such negligence on the part of the employer as will, render him liable for any injury the servant may receive while engaged in such employment; but, on the other hand, all the circumstances attending the case, such as the dangerous character of the work directed to be done, the age and experience or inexperience of the servant, and the knowledge of the master as to these attendant circumstances, must be taken into consideration in determining the question of negligence.
In the case at bar the plaintiff was a man of forty years and upwards, an intelligent mechanic. lie had been in the employ of the railroad company for over ten years, and for several years had been the foreman of a gang of men employed in building and repairing bridges and other structures for the defendant on its road, and was so engaged at the time the accident happened. In his employment he had an engine and cars under his control, for the purpose of doing his work, and a man or men whose duty it was to couple or uncouple cars as needed in such work. At the time he was requested to do the switching in the defendant’s yard, he was requested to take the engine he had in use for doing his ordinary work, and the gang of men under him, and do such work. He made no objection to doing the work on the ground that it was dangerous, or that he had not sufficient knowledge or experience to do the same safely to himself and the men under his charge. Under these circumstances it seems to us that no negligence can be attributed to the company for directing him to do the work.
That the plaintiff cannot recover upon the facts proved in this case is well settled by the authorities cited by the learned counsel for the appellant. McGinnis v. C. S. Bridge Co. 49 Mich. 466, 8 Am. & Eng. R. Cas. 135; Wormell v. M. C. R. Co. 10 Atl. Rep. (Me.), 49; Rummell v. Dilworth, 111 Pa. St. 343, 345; Leary v. B. & A. R. Co. 139 Mass. 587; Railroad Co. v. Fort, 17 Wall. 554, 558; Cahill v. Hilton, 106 N. Y. 512, 518; 3 Wood, Ry. Law, 1487; Wood, Mast. & Serv. § 344; May v. O. & Q. R. Co. 10 Ont. 70; Hawk v. Penn. R. Co. 11 Atl. R. 459.
We are not called upon in this case to determine what the rule would be if the employee, when ordered to do work which his general employment did not require him to do and which was dangerous in its character, objected to doing the work on the ground of want of experience and knowledge sufficient to enable him to perform the work with safety to himself and those under him, and, notwithstanding such declaration on his part, his employer insisted upon his doing it, and thereupon he undertook to do the work after such protest, rather than subject himself to the risk of being discharged from his employment. We do not in this case either affirm or disaffirm the rule stated by the supreme court of Massachusetts in Leary v. B. & A. R. Co. 139 Mass. 587, upon that state of the case. All we decide in
There are other reasons why the plaintiff ought not to recover in this action. He was not directed to couple or uncouple cars. He was the foreman of a gang of men, having in charge an engine and some one to do the coupling and uncoupling of cars. He was directed to take the engine and his men and do the switching of some loaded cars in the defendant’s yard. The order did not direct him personally to do the coupling of the cars. Again, according to the testimony of the plaintiff 'himself, he was not injured on account of his inexperience in coupling cars, but by reason of a defect in the car he attempted to couple to the engine. He claims, and we are inclined to think his claim is well founded, that he would not have been injured had it not been for the projecting bolt or rod which caught his glove when he attempted to withdraw his hand from the place of danger.
In no view of the case can the verdict be sustained, except upon the theory advanced by the learned counsel for the respondent, as stated above. We think the rule of liability as claimed by the learned counsel is not sustained either by authoritjr or upon the principles of law applicable to employer and employee. Hpon the undisputed evidence in the case, and upon the findings of the jury, judgment should have been rendered in favor of the appellant.
By the Oowrt.— The judgment of the circuit court is reversed, and the cause is remanded with directions to render judgment for the defendant.