134 Wis. 412 | Wis. | 1908
There is no direct evidence that deceased knew the platform was dangerously near the track, nor that he had ever gone between the platform and a moving car at this point before the time of injury. It is true he was an experienced brakeman, and it does not appear why he passed from the south side of the track in front of the backing cars and went
Point is made by counsel for appellant that notice was served on deceased before the injury to the effect that there were obstructions dangerously close to the track and that he was required to look out for them. There is no claim, however, that any notice was given deceased of the particular dangerous condition in question, and we do not think as matter of law such notice could have the effect of charging him with the assumption of risk or of negligence in not finding it. Leque v. Madison G. & E. Co. 133 Wis. 547, 113 N. W. 946. We have examined the cases cited by counsel for appellant and cannot see that they are controlling. A case more in point than any cited is Dorsey v. Phillips & C. C. Co. 42 Wis. 583. There the facts were very similar to those in the case before us, and this court held that the questions of assumption of risk and contributory negligence were for the jury. See, also, Sweet v. Mich. Cent. R. Co. 87 Mich. 559, 49 N. W. 882; Hocking v. Windsor S. Co. 125 Wis. 575, 104 N. W. 705; Chicago & I. R. Co. v. Russell, 91 Ill. 298; Kearns v. C. M. & St. P. R. Co. 66 Iowa, 599, 24 N. W. 231. After a careful examination of the evidence we are
“Could tbe deceased, by tbe exercise of ordinary care, ■have observed and discovered tbe platform and tbe track, and tbe precise relation of tbe platform to tbe track and tbe moving cars?”
There was no error in tbis refusal in view of tbe verdict submitted. Tbe verdict returned amply included tbe idea covered by tbe question asked to be submitted. Tbe issuable facts were covered by tbe verdict, and tbis is all that is required. We tbink tbe case was fairly tried and no reversible error committed. Therefore tbe judgment should be affirmed.
By the Court. — Tbe judgment is affirmed