93 Wis. 32 | Wis. | 1896
The main track of the defendant’s railway at the place in question runs east and west, and crosses Tower avenue at right angles. The first street east of Tower avenue is Ogden avenue, and the first street east of that is John avenue. Erom Tower avenue to John avenue the distance is more than 600 feet. Near the west side of John avenue is a switch connecting a spur or stub track with the defendant’s main track, and on the south side thereof, and which spur track runs west from the switch and parallel to and four feet south of the main track to within two feet of the east sidewalk of Tower avenue, where it terminates. On the south side of the spur track is an alley parallel with it, and nine or ten feet wide, connecting with Tower avenue and the other avenues mentioned. Immediately south of the west end of the spur track and the alley is Paden’s building, mentioned in the verdict, extending from Tower avenue east and along the alley for a distance of about 100 feet. By reason of that building the spur track is called “ Paden spur.” Certain packing companies had their offices in Paden’s building, and “ Paden spur ” was used for storing meat and other freight cars. On the morning in question six or seven freight cars attached to each other were standing on the west end of “ Paden spur,” the car at the west end being a meat car standing within two or three feet of the end of the rails, with no bumpers or other obstruction to prevent cars from running off the ends of the rails.
The evidence in behalf of the plaintiff tends to prove that the morning was dark, wet, and sloppy, with, rain and sleet falling, and some snow and ice on the ground,— being December 22, 1891; that about 9 o’clock of that morning the plaintiff, who was in the employ of the defendant as foreman of a switching crew, came from the west across Tower avenue on the main track with his crew, engine,, and one meat car, intending to set the car he was thus bringing in upon “ Paden spur,” next to the meat car thus standing on
We cannot say, under the circumstances mentioned, as a matter of law, that the plaintiff assumed the risk. This court has repeatedly held, in effect, that before an employee can be held to have assumed an unusual or extraordinary risk, he must know, or have reasonable means of knowing, of the precise danger to which he is exposed and which he thus assumes; and that a mere vague surmise of.the possibility of danger is not enough to take the case from the jury. Dorsey v. Phillips & C. Const. Co. 42 Wis. 583. In that case RyaN, C. J., said, in effect, that even where those operating trains have actual • knowledge of the dangerous proximity of adjacent objects, yet it would be unreasonable to require them “ to retain constantly in their minds an accurate profile of the route of their employment, and of collateral places and things, so as to be always chargeable, as well by night as by day, with notice of the precise relation <of the train to adjacent objects.” Page 599. This language is peculiarly applicable here. To the same effect, Nadau v. White River L. Co. 76 Wis. 132; Kelleher v. M. & N. R. Co. 80 Wis. 584; Haley v. Jump River L. Co. 81 Wis. 426; Colf
The only remaining question upon the point we are now considering is whether the plaintiff was guilty of any want of ordinary care in failing to observe the ash piles before or at the time he attempted to make the coupling. Under the facts and circumstances mentioned, we cannot say, as a matter of law, that the plaintiff was guilty of such want of ordinary care, but must hold that the question was properly submitted to the jury. The finding of the jury in favor of the plaintiff upon that question is, therefore, conclusive.
There are numerous exceptions in the case, but what has been said disposes of all questions calling for consideration.
By the Oowrt.— The judgment of the circuit court is affirmed. .