Flannagan v. Chicago & Northwestern Railway Co., 50 Wis. 462

Flannagan v. Chicago & Northwestern Railway Co.

50 Wis. 462 | Wis. | 1880

Cole, C. J.

The learned circuit judge granted the nonsuit in this case on the ground that the undisputed testimony showed that the plaintiff was guilty of contributory negligence. In his opinion the learned circuit judge says that it was proper to advert to the nature of the plaintiff’s employment, and to consider whether it did not impose upon him more than ordinary diligence, or tire diligence of an ordinary switch-man, while performing his services. The learned judge states that it was quite apparent, by reason of the duties that were cast upon plaintiff by his employment, that he must have known it was more hazardous than the usual employment of a brakeman on the road; that he knew it was the custom in the yard to take all cars which had been used for bringing ore to Escanaba down to the repair shops for inspection; knew it frequently happened that cars which were out of repair were taken down there, together with cars which did not need repair; and that a knowledge of these facts imposed upon him more care than would have been incumbent upon him under other circumstances. Consequently the judge held that when the plaintiff sought to climb upon cars which he was thus engaged in handling, and which were liable to be out of repair, he was bound to realize that fact, and not attempt to step upon the jaw-brace without looking to see where he was placing his foot, and not taking it for granted that the brace was there in its place because braces were usually on the cars. There is certainly very great force in this view of the case, but we are disposed to affirm the judgment for the reason that there was no sufficient evidence of negligence on the part of the company to carry the case to the jury.

*471When this case was here on a former appeal (45 Wis., 98), it was decided that no negligence on the part of the company could he predicated upon the delay in removing the broken car from the end of the spur track, where it was broken. It was also decided that the law did not impose upon the defendant the duty of repairing the car upon the track where it was broken, but that it had the clear right to remove it to its repair yard, where such work was usually attended to. These propositions would seem to be so well founded in reason and common sense as to need no illustration or argument to support them; for a moment’s reflection must satisfy any mind that it would be practically impossible for a railroad company to repair its broken cars along the line of its road where they might happen to be wrecked. Machinery appliances, together with skilled workmen, are generally needed to make repairs; and hence there is a necessity for removing broken cars to shops or yards where these can be secured. It is true, the testimony shows that the broken brace on this car might have been repaired on the track where it stood; but it appears that the company had a rule or custom of sending all cars, after they were unloaded of ore, down to the repair shops for inspection. This would seem to be a reasonable way of doing business, and the custom was well known to the plaintiff..

But, says the learned -counsel for the plaintiff, the law imposes upon the company the duty of furnishing safe and suitable machinery and appliances for the transaction of its business, and it has no right to increase the perils of the employment of its servants by a failure to perform' that duty. But that proposition of law can have no application to the facts of this case; certainly not in the sense in which it is sought to apply it. No question is made but that the car in question was in good order, furnished with a suitable brace, when it was purchased by the company. But, in the hard, rough business in which it was used, of transporting ore, it was broken. It then had to be sent, with all other cars used *472in this business, to the usual place for repairs and inspection. Indeed, Mr. Justice Lyou, in his opinion on the former appeal, gives a complete and perfect answer to the argument urged upon us upon this point. He says: “ Cars and engines are frequently damaged, and it becomes necessary to remove them to some proper place for repairs; and it may happen that they are so seriously damaged that their removal will be attended with some personal danger to those engaged in the work. Tet this is one of the perils of the business, and if a person so employed is injured because of the broken and unsafe condition of the car or engine, he has no remedy against the owner, unless such owner has been otherwise negligent.” Page 104.

The plaintiff was well acquainted with the hazards of. this business of handling cars in and about the yard, when he entered upon and continued in the employment in which he was engaged. He knew that in every train which came to Esca-naba loaded with ore some cars were found to be more or less injured or broken. He voluntarily assumed the risks attendant upon this employment. But it is said that it was an act of negligence on the part of the defendant to place the car with the broken jaw-brace in a train with other empty cars for the purpose of sending them all'together to the repair yard for inspection.- Tet it clearly appeared that this was the method the company had for doing its business in the yard; and, considering the fact that 400 or 500 cars a day were handled about the yard, it is plain it would have been utterly impracticable to move each car by itself.

Another act relied on as showing actionable negligence on the part of the company, was the order given the plaintiff by O’Brien, directing him to get off the train when it was moving from the stock dock, turn the switch No. 12, and then jump on the second car from the engine and pull the pin, so as to send the empty cars down to the repair yard. It is said that O’Brien was foreman of the gang in which the plaintiff *473■was engaged, and if he directed the plaintiff to climb upon a car with a broken brace, and, in obeying that order, the plaintiff was injured, the company is responsible. Wliat the rule of law should be in case it appeared that it was the duty of O’Brien to inspect or know the condition of the ears he was moving in the yard, or if he actually knew that the second car, which he dix-ected the plaintiff to climb upon, had a broken brace, is a question not free from difficulty upon the authorities. The question was ably discussed on the argument, but we do not think it arises in the case.

In Brabbits v. Railway Co., 38 Wis., 289; Smith v. Railway Co., 42 Wis., 526; Bessex v. Railway Co., 45 Wis., 477, and Schultz v. Railway Co., 48 Wis., 375, this court had occasion to consider somewhat the liability of a railway company to a servant for injuries sustained in his employment, caused by the neglect of another servant to perform some duty which the company had imposed upon the latter. It will be seen, from these and other decisions, that this court has not gone as far as some others, either in exempting the corporation from liability in such cases, or in holding it responsible. The liability of the company in some cases is made to depend upon the grade or rank of the employee whose negligence caused the injury. But, as we have said, the question cannot well be considered here, because there is not a scintilla of evidence that it was the duty of. O’Brien to inspect the cars he was moving, or that he knew the second caí-, which he directed the plaintiff to get onto, had a broken brace. O’Brien, with a gang consisting of the plaintiff, an engineer and a fireman, were engaged in unloading cars which came to the yard, and in moving and handling them from one place to another therein. All were really engaged in the same service, chargeable with the same duty. There is no pretense that O’Brien had actual knowledge that the second car from the engine was out of repair. On the contrary, the plaintiff had equal if not greater opportunities than any one of the gang for discovering the *474defect in the car which he was directed to climb onto. There is no more ground — perhaps not as much —• for imputing negligence to O’Brien, because he was ignorant that that ear was broken, than to the plaintiff. Both the plaintiff and O’Brien had about the same means of observing defects in the cars which they were moving, so far as the evidence shows. Both knew very well they were engaged in handling cars which, from the use to which they were put, were liable to be broken, and were found to be frequently out of order. But still the plaintiff assuméd the risk incident to the service, knowing all about the danger which attended it. Besides, in this case, the defect in the car which he attempted to climb upon,was plain and visible — ■ one which he could not fail to see had he looked where he was placing his foot. Therefore, under all the circumstances, we think there is no ground for imputing negligence to the defendant because the jaw-brace was broken on this car, which was being removed to the proper place • for repairs.

It follows from these views that the judgment of the circuit court must be affirmed.

By the Oov/rt.— Judgment affirmed.