Hinz v. Chicago, Burlington & Northern Railroad, 93 Wis. 16

93 Wis. 16 | Wis. | 1896

MaRshall, J.

Ho principle is more firmly established than that the servant assumes all the risks ordinarily incident to his employment, and all risks attending such employment as carried on by the master, known to such servant or which, by the exercise of ordinary intelligence and prudence, under the circumstances of the situation, he ought to know; that when a servant of a railway company has knowledge of the manner in which its trains are run, in re-speot to anything that may subject persons circumstanced as such servant is liable to be in the performance of his duties to danger of personal injury, he is presumed to assume all the risks of his employment resulting therefrom. Wright v. N. Y. C. R. Co. 25 N. Y. 562; Haskins v. N. Y. C. & H. R. R. Co. 56 N. Y. 608; Naylor v. C. & N. W. R. Co. 53 Wis. 661; Brossman v. L. V. R. Co. 113 Pa. St. 490; Larson v. St. P., M. & M. R. Co. 43 Minn. 423; Jolly v. D., L. & R. R. Co. 93 Mich. 370; Olson v. St. P., M. & M. R. Co. 38 Minn. 117; Pennsylvania R. Co. v. Wachter, 60 Md. 395; McGrath v. N. Y. & N. E. R. Co. 18 Am. & Eng. R. Cas. 5. Indeed, the law pertaining to the subject is so well settled as not to be open to serious discussion. The authorities cited by the learned counsel for respondent, included above, so clearly cover the case that the conclusion, here reached might well rest on them alone, or stand on a mere statement of legal principles so elementary without any reference to authorities on the subject.

We do not understand that the learned counsel for appellant contended but that the law is as stated. They rely on the existence of the elements of danger ■ of the fog and speed of the train, as rendering the doctrine of assumed risks inapplicable to the facts of this case, at least in so far that the cause should have been submitted to the jury. A like contention was made in Pennsylvania R. Co. v. Wachter, supra, where the facts were quite similar to the instant case. W. was employed as a trackman; he was proceeding on a hand car to his work of repairing the track; there was a dense fog; the noise of the hand car was such that he could not hear an approaching train; he knew that he was not on the time of any regular or scheduled train, but that extra trains were likely to be run at any time; he was struck by an extra, coming in the opposite direction at a rapid rate of speed, without any previous warning, and was permanently injured. On these facts the court said, in effect, there ought not to be any difficulty in regard to the rules of law by which the rights or liabilities of the parties are to be determined; the plaintiff took upon himself all the risks of the service he was engaged in, growing out of the manner in which the work was carried on; he knew, or had a reasonable opportunity to know, how such service was conducted,, and must abide by the consequences.

Applying the law above stated and supported, plaintiff’s intestate knew, or had reasonable opportunity of knowing, the risks that he subjected himself to in the service in which he was engaged, particularly in proceeding on the hand car, in a dense fog, under such circumstances that he could neither see nor hear an approaching train. He must, therefore, be considered to have assumed the risks attending such conduct, and his representatives must abide by the consequences. They cannot legally be shifted to the defendant, but must rest where they first fell. Such is the law governing this case upon the facts established by the undisputed evidence; hence the trial court properly granted defendant’s motion for a nonsuit.

By the CJowrt.— The judgment is affirmed.