143 Wis. 175 | Wis. | 1910
1. The appellant contends that the deceased was the servant of the railway company; that such company was obliged to furnish him a safe place in which to work; that he was not the servant of the appellant, and the latter owed him no legal duty; and that therefore no right of recovery exists against it because no actionable negligence is shown.
The doctrine contended for would be a harsh if not an inhuman one for the courts to countenance. That a private contractor may place an obstruction so close to railway switch tracks that a switchman, in riding upon a car or an engine while doing his usual work, is liable to be killed by coming in contact with such obstruction, and then escape liability by asserting that the person killed or injured was not an employee of such contractor, and therefore it was not liable because it owed him no duty, is a startling proposition that finds no support in the decisions of this court, and little, if any, support in the decisions of other courts.
Presumably the C. W. Noble Company knew that the switch tracks were used for switching purposes and that switchmen customarily ride on engines and cars in the performance of their duties. In piling its material on the right of way of the railway company adjacent to the switch tracks, it was bound to exercise ordinary care in so placing it that it would not be a menace to the life or limb of railway employees riding on cars and engines in the manner in which they ordinarily ride while in the performance of their duties. If it failed to exercise such care it was guilty of a tort. It owed to the employees of the railway company the duty of ordinary care, under the circumstances disclosed by the complaint, and the complaint shows that such care was not exer
2. It is next urged that the complaint is defective because it does not allege when the timbers were piled near the railway track. It is alleged that, before the accident occurred, they were placed in the dangerous position which they occupied and that they caused the accident. Such allegation is sufficient to show liability.
3. Lastly it is argued that there is no privity between the defendants and therefore no joint liability for the injury exists. This question is not before us. There was no demurrer interposed to the complaint because of a misjoinder of parties or of causes of action; simply a general demurrer on the ground that a cause of action was not stated against the appellant. Subd. 4, sec. 2649, Stats. (1898), specifies a defect of parties as one of the grounds of demurrer, and
By the Court. — Order affirmed.