167 Wis. 597 | Wis. | 1918
Lead Opinion
The following opinion was filed April 30, 1918:
The stipulation that this case is governed by the federal liability law if, at the time of the accident, the deceased was at work as an employee of the defendant, renders it necessary to consider but four questions, viz.: (1) Was there evidence tending to show that the .deceased was in a legal sense at work as an employee of the company at the time of the accident ? (2) Was there any evidence of actionable negligence on the part of the defendant or its employees? (3) Fid the deceased, as matter of law, assume the risk? (4) Was the cause of the accident mere conjecture? These questions will be discussed in their order as stated.
1. It is now quite well settled by federal decisions that “in leaving the carrier’s yard at the close of his day’s work” •the employee is but discharging a duty of his employment, and that, if he was employed in interstate commerce while actually at work, he was, in legal contemplation, so engaged while leaving the yard when the actual work was ended. Erie R. Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556. Our own decisions are in harmony with this principle. Ewald v. C. & N. W. R. Co. 70 Wis. 420, 36 N. W. 12, 591; Kunza v. C. & N. W. R. Co. 140 Wis. 440, 123 N. W. 403. Of course the employee must be leaving by the proper and
We think that there was sufficient evidence in the present case to take this question to the jury. The evidence is plenary that engineers were permitted, at the end of their run, to ride out to the roundhouse yard with the engine dispatcher if they chose, and it is clearly proven that such was the almost uniform practice of the deceased. _ There is much testimony also to the effect that employees used the entire space from the water tank (where the engine started) to the coal sheds (opposite which the body of the deceased was discovered) in going back and forth to and from their work. This space was a network of tracks, and the engine .dispatcher, Vollmer, says: “Men or employees frequently cross the track down even with the coal sheds going towards town, and we have to be careful to avoid accidents, as those men sometimes pass in front of the engines.” Again Vollmer says, after stating that he found some footprints in the snow coming from the west to a point about 350 feet east of the water tank, where the marks of some person being dragged in the snow began: “I don’t know whether those footprints . . . were of Mr. Ewig or not, but that is the short cut through there from the shanties [i. e. the locker and bulletin shanties] towards the Merrill Park depot; that is the customary way.” There is no evidence in the case of any active objection on the part of the defendant to this use of the tracks, and hence there was sufficient evidence to take to the jury the question, whether this was a usual and tacitly permitted way to enter and leave the roundhouse yard. The argument is made that so long a time elapsed between the arrival of Ewig’s engine at the cinder pit and the accident that it must be held that Ewig had stopped at the roundhouse to visit or for other purposes of his own and hence could not be held to be in service, even though leaving the grounds in a usual way. We do not think we can so hold as a matter of law. Ewig’s
2. Was there proof tending to show actionable negligence on the part of the defendant ? On this question it is urged by respondent that the uncontradicted proof shows that the engine bell was ringing, the speed moderate, and the method of handling the engine, namely, by an engineer alone with no fireman, the customary method used in the yard, and hence that no negligence can be found in these respects. This may be at once admitted, but there is one ground of negligence claimed by appellant which is not thus foreclosed, namely, the failure to keep a proper lookout. It appears that the engine was a very large one, with a high tender piled full of coal, and that when the engineer sat in the window seat on the right hand (in this case the north side)
3. Upon tbe question of assumption of risk little need be said. It is true that assumption of risk still remains a defense under tbe federal act, but, as has been said by this-court, that does not include risk of unexpected negligent acts-of co-employees. Graber v. D., S. S. & A. R. Co. 159 Wis. 414, 150 N. W. 489. Under tbe evidence in this case there was room for tbe conclusion that tbe failure of Vollmer to keep a lookout on tbe south side was sucb a negligent act.
4. We cannot say that -the cause of tbe accident is necessarily mere conjecture. Tbe evidence tends to show that tbe deceased was struck by tbe engine at a point where there was much travel to and fro and where be would very naturally be crossing tbe track on bis way to bis brother’s bouse on Twenty-eighth street. We intimate no opinion as to tbe fact, but simply bold that a verdict to that effect could not be said to have no evidence in its support.
By the Oourt. — -Judgment reversed, and action remanded for a new trial.
Rehearing
Tbe respondent moved for a rehearing, and tbe following opinion was filed July 8, 1918:
Upon respondent’s motion for a rehearing attention is called to tbe case of Jacoby v. C., M. & St. P. R. Co. 165 Wis. 610, 161 N. W. 751, 164 N. W. 88, in which it was held as matter of law that a railroad employee leaving bis master’s premises after completing bis duties was not engaged in interstate commerce, and it is claimed that tbe doctrine there laid down should be applied to this case.
Motion denied, with $25 costs.