71 Wis. 553 | Wis. | 1888
It is claimed by the learned counsel for the appellant that the complaint does not state a cause of action because it shows that the plaintiff was a mere volunteer in the work in which he was engaged at the time he received his injury. Under the allegations of the complaint, the plaintiff was engaged in the defendant’s work at the request of the man in charge of the work; and, although it may be said that his employment was for a mere temporary purpose, and that the plaintiff was not expecting any pay for the work done, and in that sense the employment was voluntary, still, being in the defendant’s employment at the request of its servant or foreman, he was not a trespasser, and he was, for the time being, the servant of the defendant, and entitled to the same protection as any other servant of the defendant, and probably subject to the same risks of injury from the negligence of his fellow-servants. This seems to be the rule established by the authorities, and is supported by considerations of justice. Elwell’s Evans on Agency, 682; Wood on Mast. & Serv. 909, sec. 455; Degg v. M. R. Co. 1 Hurl. & N. 773; Potter v. Faulkner, 31 Law J. Q. R 30; Warburton v. G. W. R. Co. L. R. 2 Exch. 30, 36 Law J. Exch. 9; Wiggett v. Fox, 11 Exch. 832; Abraham v. Reynolds, 6 Jur. (N. S.), 53; Flower v. P. R. Co. 69 Pa. St. 210; New Orleans, J. & G. N. R. Co. v. Harrison, 48 Miss. 112, 12 Am. Rep. 356; Street R. Co. v. Bolton, 43 Ohio St. 224, 226.
Conceding that the complaint shows that the plaintiff stood in the relation of a servant or employee of the defendant at the time the accident happened, does it state other facts which, if proved on the trial, would make the
The courts have uniformly held that it is a duty which the employer owes his servants, when set to do any particular work, that he shall provide a sufficient number of men to do the work in a reasonably safe manner. This duty is placed on-the same ground which requires the employer to furnish safe implements and appliances for doing the work and a reasonably safe place in which the work is to be done. "Wood, in his work on Railway Law (Vol. 3, p. 1487, sec. 381), says: “The term ‘appliances’ of the business embraces not only machinery, premises, and all the implements of every kind used in and about the business, but also the persons employed to operate them; and the master must furnish a sufficient number of persons competent to perform the labor safely; and, when the failure to employ a sufficient number of hands to perform the particular service is the proximate cause of the injury, the master is liable unless the servant may fairly be said to have assumed the risk incident thereto.” This is a reasonable and just rule, and has been approved by all the courts in which the question has been raised, except in cases where the employee knew at the time that there was a want of sufficient help, and, notwithstanding such knowledge, entered into the employment. Flike v. B. & A. R. Co. 53 N. Y. 549, 554; Hayes v. W. R. Corp. 3 Cush. 270; Mad R. & L. E. R. Co. v.
The facts stated in the complaint negative any presumption that the plaintiff was aware of the fact that there was a want of sufficient men to perforin the work safely, which he was suddenly called upon to assist in doing. It cannot be said, therefore, from the facts stated in the complaint that the plaintiff assumed the dangers incident to carrying on the work with an insufficient number of men. 'We think the complaint states a good cause of action, and the demurrer to the same was properly overruled.
By the Gourt.— The order of the circuit court appealed from is affirmed, and the cause is remanded for further proceedings.