93 Wis. 487 | Wis. | 1896
The evidence is undisputed that the engineer had never known the plaintiff, during the thirty-three days they had .served together, to go under the engine before without notifying -him; and while the plaintiff testified, in substance, that if the engineer was not present he would go under — be willing to go under, as we understand him — without looking up the engineer, relying upon the engineer to-look out before he made a discharge of water, he did not testify that he had ever gone under the engine under such ■circumstances; on the contrary, he testified that he always ■did tell the engineer, and the engineer always told him when he (the engineer) was going under. The danger of a contrary course is obvious, as well as the fact that a discharge ■of water and steam is not the only danger to be encountered, ■but that great injury or loss of life may be occasioned in ■such a case by manipulating the engine or moving the locomotive.
The engineer had no knowledge or notice that the plaintiff had gone, or was about to go, under the engine the second time. He was on the left-hand side of the engine, .engaged in his proper duties, and could not and did not see or hear the plaintiff when he returned, on the right-hand side, from putting up the card on the car, and went under the engine on that side without giving the engineer any no
It is said the engineer knew, or had reason to believe, that the plaintiff had not fully cleaned the ash pan and would probably return to and complete the work. But he was not required to consider or speculate upon that subject. Neither the fireman nor the engineer was under any duty to anticipate or speculate, in the absence of notice, as to what the other intended to or might or might not do. The engineer was entitled to rely upon the plaintiff’s giving notice of the-fact if he intended again to go under the engine, and might properly continue in his line of duty, as he did, until he received it, without being subject to the imputation of negligence. In the exercise of the rights and duties of the engineer and fireman, there must necessarily be conformity to the settled usage and uniform course of duty designed to secure their personal safety, or loss of life or serious personal.
For these reasons, the circuit court erred in refusing to direct a verdict for the defendant.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.