Kleeman v. Chicago & Northwestern Railway Co.

186 Wis. 482 | Wis. | 1925

The following opinion was filed February 10, 1925:

Vinje, C. J.

The appeal raises two questions: (1) May a jury reasonably come to the conclusion that it was a negligent act to throw the stone under the circumstances? and (2) Was the act of throwing the stone within the-scope of the foreman’s employment?

It is urged by the appellant that the act of throwing stones is so usual, customary, and, under the circumstances existing, so instinctive that no negligence can be predicated upon it. While there is ordinarily much force in this contention we do not feel that it is of sufficient weight to authorize us to set aside the verdict. When it is borne in mind that the ball of the rail at which the stone was thrown was smooth, hard, and somewhat rounded, it may reasonably be anticipated that upon striking the rail the stone may glance in almost any direction or it may shatter and the pieces fly in any direction. With nine men standing within the distance that the stone might glance or the pieces fly, men may reasonably reach the conclusion that an injury to another may follow the foreman’s act. This stone was evidently thrown with great force, struck the snake’s head, and at the same time struck the ball of the rail, and a splinter from the stone flew about sixteen feet to one side and hit plaintiff in the eye- — a result not beyond the field of reasonable anticipation. The precise injury need not be anticipated. Sparks v. Wis. Cent. R. Co. 139 Wis. 108, 120 N. W. 858; Schabow v. Wis. T., L., H. & P. Co. 162 Wis. 175 (155 N. W. 951), and cases cited on pages 17.7, 178. It is sufficient that it may reasonably be anticipated that injury to another may follow the act. We cannot say that the conclusion reached by the jury is so unreasonable that it must be set aside.

That the act was clone within 'the scope of the emploj'ment is quite obvious. It is claimed by appellant that the foreman was not hired to kill snakes. That is true. But he was hired to assist in moving rails, and when he saw the snake in the place and condition it was, it became at least desirable if not necessary to remove it before lifting the rail. That he did not take the most safe, or best way of removing it does not make the act one done without the scope of the employment. The purpose of the act determines that, and here the purpose was to a'id or facilitate the work of the master, to get rid of the snake so the rail could be safely moved.

By the Court. — Judgment affirmed.

The appellant moved for a rehearing.

In support of the motion there was a brief by Samuel H. Cady, attorney, and R. N. Van Doren, of counsel, both of Chicago.

In opposition thereto there was a brief by Winter & Winter of Shawano.

The motion was denied, with $25 costs, on April 7, 1925.