Colf v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

87 Wis. 273 | Wis. | 1894

Winslow, J.

It is strongly contended by the appellant that no negligence is shown on the part of the railway company in locating and keeping the switch stand in question so near the main track. We think the question was fairly one for the jury. That it was so close to the track as to be dangerous to switchmen in performance of their ordinary duties can hardly be doubted. There is testimony to show that the projecting arm was only seven and one-half inches from the gangway step of an engine as it passed the spot. Again, there was evidence that it stood considerably closer to the track than other switches in the yard, and, it being kept spiked and never used, its relation to the track might naturally not be noticed by an employee as readily as the location of other switches which were in constant use. It further appeared that no light was ever provided for it. In view of the decisions of this court in the cases of Dorsey v. P. & C. Const. Co. 42 Wis. 583, and Kelleher v. M. & N. R. Co. 80 Wis. 584, we 'cannot say as matter of law that there was no negligence on the part of defendant in placing the switch stand where it was, Especially as to employees compelled to perform their '"duties in the yard in the darkness of night.

Nor can we say as matter of law that the plaintiff must be held to have assumed the risk. It is true that the plaintiff had worked in the yard a considerable time, but he had always worked at night. He had never been called on to throw this switch, because it was never used. The switch was nearer to the track than other switches in the yard,— -a fact which he testifies he never had noticed. It bore no - light, and the attention of plaintiff was momentarily drawn Urom his own safety, by reason of instructions which he Ws necessarily giving to the new hand. Under all the 'circumstances, this question, also, was for the jury. The case of Dorsey v. P. & C. Const. Co. 42 Wis. 583, seems decisive on this point also.

A rule of the company was introduced in evidence which strictly prohibits employees from jumping off engines or trains moving at a high rate of speed, but it was undoubtedly a question for the jury whether this engine was at the time in question going at a high rate of speed. It was claimed, that the plaintiff must be held guilty of negligence, as a matter of law, in attempting to jump from the engine as he did, while in motion. This also is properly a question for the jury, considering his duties and all the attending circumstances.

There was, however, a ruling upon evidence made during the trial which we are satisfied was erroneous. One Staler, a switchman in the yard, was asked what the fact was in doing work in the yard, and the practice of men getting off of the engine when moving, and, against objection, he answered that they did. This was entirely a collateral matter. It raised other issues not essential or legitimate in the trial of this case. To determine whether the other employees who jumped from engines were negligent in so doing would necessitate an inquiry into the facts of each case, and thus open up an interminable field of contention. There was no offer to show that such a practice was known to any officer or employee of the defendant whose duty it was to regulate the location of switches or. other structures. The necessary effect of such testimony would be to cause the jury to believe that, if others jumped from engines, it was not negligence for the plaintiff to do so. There is no such rule. Lewis v. Smith, 107 Mass. 334. Eor this error there must be a new trial.

By the Court.— Judgment reversed, and action remanded for a new trial.