Luebben v. Wisconsin Traction, Light, Heat & Power Co., 154 Wis. 378

154 Wis. 378 | Wis. | 1913

Lead Opinion

Tbe following opinion was filed April 29, 1913:

ViNje, J.

Defendant argues that the answers returned by the jury to questions 8 and 9 are not inconsistent with the answer to the seventh question, and that hence it was entitled to judgment upon the verdict as returned. We are satisfied that the trial court properly changed the answer to question 9 from No to Yes, and that the verdict so changed called for a judgment in favor of the defendant, and shall therefore not consider the-alleged inconsistency of the jury’s findings. the cáse seems to be barren of any contributory negligence, strictly so called, on the part of the deceased, and the court’s change of answer to question 8 must be construed only as a finding that the deceased assumed the risk. At any rate, if the evidence shows that the risk' of the uneven track was assumed by the deceased recovery cannot be bad.

A considerable portion of tbe argument in behalf of tbe plaintiff is to tbe effect tbat defendant failed to furnish tbe deceased a safe place in which to work owing to the roughness of the track generally and the special defect at the place of the injury, and that it was negligent in not repairing the track. Defendant’s negligence is a verity in the case, and no time need be devoted to a discussion of that question. The plaintiff’s witness Turkow, wbo was the motorman at the time of the injury, after testifying generally to the roughness of the track all along State street, thus described the place where deceased fell from the car:

“Eight on Seventh street, on tbe north end on tbe north crossing of Seventh, there was a kind of a bole there, and the rails didn’t come together. About an inch or an inch and a half of tbe rails were loose. There was a give to tbe rails, that is where tbe rails were fastened there was a give. There was a bole, and every time we went over there when tbe trucks struck thát, there was a jolt. . . . Tbe condition of tbe rails at Seventh street caused tbe car to jolt whenever it would strike that' hollow place. Every time you went over that place it would give the motion of tbe car wbicb I described. It threw the car. When tbe car went down, it seemed as though it struck something right there, and it kind of jerked tbe car. I felt that. I always felt tbe jar on tbe front trucks, but I could not feel tbe rear.. I felt tbe same motion every time I went south for several months before tbe accident. Tbe cars would always swing there, but this [referring to tbe time of the injury] was kind of a sudden jerk. We were running as usual that night. I felt tbe same motion coming over after tbe accident.”

Plaintiff’s witness Wirtz testified to tbe effect that be saw Luebben on tbe ear tbe night of tbe accident, as tbe car was about ten or fifteen feet north of'the north crossing at Seventh street. As tbe car struck that crossing Luebben’s feet went up and bis bead and shoulders down. Tbe witness Zuehlke testified:

“I saw Ben Luebben collecting fares on State street. I noticed him walking along tbe running board towards tbe front end of tbe car, collecting fares, and on bis return be came to the rear end of the car and attempted to reach np to something, and then all of a sudden I noticed he was off the car, and apparently on the ground on his head and shoulder.”

Thus the evidence discloses that the deceased, who was forty-two years old, received injuries resulting in death by being thrown from the running board of an open car at a place where the track was defective while the car was operated in the usual manner and at the usual rate of speed; that it was the second summer of his experience as a street-car conductor,- and that for over a month previous to the injury he had many times daily passed oyer the same defect in the track when it jolted the car substantially in the same way. It seems to us that the only reasonable inference to be drawn from the undisputed facts in the case is that' the deceased knew of the defect and appreciated the risk of injury arising therefrom. Who better than an adult person that has daily traveled back and forth on a running board as the car passed over a rough track can appreciate the danger of being thrown therefrom and sustaining an injury as a result of the fall? It is not necessary that he should be held t'o have anticipated the precise injury or the particular manner in which it occurred, or the exact extent thereof. It is sufficient if he, as a reasonably prudent man, ought to have anticipated that some injury might probably, result from his being thrown from the car on account of the defective track. Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568; Coel v. Green Bay T. Co. 147 Wis. 229, 133 N. W. 23; Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741. Among cases in our own court that tend to sustain the conclusion reached, though under a different state of facts, maybe cited: Laughy v. Bird & W. L. Co. 136 Wis. 301, 117 N. W. 796; Hanson v. Superior Mfg. Co. 136 Wis. 617, 118 N. W. 180; Mahar v. Montello G. Co. 146 Wis. 46, 130 N. W. 949; Jones v. Milwaukee E. R. & L. Co. 147 Wis. 427, 133 N. W. 636; and Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741.

By the Court. — Judgment affirmed.

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Dissenting Opinion

Tbe following opinion was filed Maj 1, 1913:

TimliN, J.

(dissenting). I agree that the actionable negligence of the defendant is established by the evidence and by the verdict'; that the .evidence and the verdict establish that there was no contributory negligence on the part of deceased; and that the defect in the 'track which caused the death was, “kind of bole there and the rails didn’t come together. About an inch or an inch and a half of the rails were loose. There was a give to the rails, that is where the rails were fastened there was a give. . . . There was a bole there, and every time we went over there when the trucks struck that there was a jolt.” Eor about a foot and a half on either side of the joint there was no gravel or crushed stone for a space of about three inches wide on the inside and the outside of the'rail. That condition remained for several months before the accident. This condition of the rails at the Seventh street crossing caused the car to jolt whenever it would strike that hollow place,, but sometimes the jolt was more severe than at others, depending upon how the car took the rail. This was not a usual risk, because the duty to repair was continuous, the condition- illegal and abnormal, 'and repairs were due and no donbt were in progress every day. There was evidence that the motorman on this car had called the attention of defendant’s superintendent to the defect in question before the injury. I also agree that the case turns upon the question of assumption of risk by deceased.

I was forcibly impressed with the injustice of the decision of the court in this case. The law cast upon the defendant the duty of keeping its tracks in repair. Its neglect of that duty is encouraged and rewarded by immunity from liability. The deceased, upon whom the law cast no such duty, must however answer therefor with his life. Defects in street railway tracks like the small defect described are so common chat they exist in every city and in every street railway track, and thousands of passengers and employees ride over them thousands of times without any immediate or pressing suggestion of danger. It appears to me to be artificial, unreal, and untrue to expect that the breadwinner of the family should abandon his work and return to his dependent wife and children and he and they should "wait until he succeeds in obtaining other work or is supported by public charity because he discovered, or might in the exercise of ordinary care have discovered, that at a certain joint in the rails of the track over which he was operating his car the ends of the rails were an inch or an inch and a half apart, and for a foot and a half each way from this joint and for a width of three inches there was no gravel or concrete, and that the rails yielded or pressed down and the car jolted when passing over this place. I dare say that in real life if he did quit work for this reason his employer and practical men generally would imagine him suffering from some mild form of insanity. Experience has not the legal value as a factor in this case which is sometimes given to it, because experience here would only confirm the deceased in the impression that he could without danger continue at' his work. If the law is so foolish and unjust as this I concede that it is for the legislature to change it. I have no desire to change the law. If this is the law, I say “Fi&t jus ruat justitia,.1’ But if the majority opinion operates unjustly and disregards and undermines established precedents, it is not only my privilege but my duty to show this. This led me to a somewhat careful investigation of the cases. The evidence in this case was fully reflected by the verdict before the verdict was changed by the trial court, and there was no ground for changing the answers of tbe jury unless that suggested in the majority opinion to the effect' that an affirmative answer to the ninth question was necessary because the fifth question was answered in the affirmative. Upon the verdict returned by the jury as well as upon the evidence the plaintiff was entitled to judgment under decisions of this court'.

Verdict in Darcey v. Farmers’ L. Co. 98 Wis. 573.

(1) Finds against defendant upon all facts requisite to make it liable for negligence in tbe absence of assumption of risk or contributory negligence on tbe part of plaintiff.

(2) Finds that tbe location, situation, and surroundings of tbe saw and tbe extent to wbicb it was exposed were known to plaintiff prior to tbe injury.

(3)

(4) Finds that tbe plaintiff did not know nor ought he reasonably to have expected or foreseen under the circumstances that an injury would be liable to occur to him while performing his duties in the mill by coming in contact with the saw.

Judgment for plaintiff.

Verdict in the instant case.

(1) Finds against defendant upon all facts requisite to make it liable for negligence in the absence of assumption of risk or contributory negligence on tbe part of deceased.

(2) Finds that a person of ordinary care who had passed over the track as often as deceased would have known of the existence of the defect.

(3) Finds there was no contributory negligence.

(4) Finds that a person of ordinary care possessing the same knowledge and opportunity for knowledge of the defect as deceased would not have known and appreciated the danger of operating the car over tbe track in question at the speed with which the car was operated at the time of the injury. There is no finding as to tbe rate of speed, but the uncontroverted evidence is that tbe speed was usual and ordinary and about eight miles per hour.

Judgment for defendant.

Darcey v. Farmers’ L. Co., supra, was before this court three times, 87 Wis. 245, 58 N. W. 382; 91 Wis. 654, 65 N. W. 491; and 98 Wis. 573, 74 N. W. 337. Eminent and able counsel appeared and tbe case was fully considered, if six years’ litigation and three hearings in this court are sufficient for that purpose. The injury was inflicted in 1891, the case finally decided in 1898, and the earliest statute taking away the defense of assumption of risk with reference to uncovered machines was enacted in 1905. Saws were not included among the machines required to be covered or guarded until the enactment of ch. 470, Laws of 1911. So that case was, like the instant case, a question of the common law of negligence of an employer resulting in injury to an employee. The decision in the instant case does not purport to overrule Darcey v. Farmers’ L. Co., supra — it merely disregards it. Precedents, it would seem, are almost sacrosanct when they relate to property, but when they relate to life or safety of a workman they are easily and lightly disposed of, as in Willette v. Rhinelander P. Co. 145 Wis. 537, 543, 130 N. W. 853, where it was said of a troublesome precedent of this kind: “It may be that all who concurred . . . did not intend to hold,” etc., as the precedent read. So in Darcey v. Farmers’ L. Co., supra it may be that all who concurred in giving judgment for the plaintiff did not intend to hold that the plaintiff should have judgment. The defect found in Darcey v. Farmers’ L. Co., supra, was much more suggestive of danger than in the instant case. In the last decision nothing is said in the opinion of the court to indicate that the case was decided because of “the law of the cáse” as established by prior decisions in the same case. This is put' forward in a concurring opinion by Mr. Justice Marshall and somehow found its way into the syllabus, but in any event it must be conceded that such “law of the case” was declared and established by this court in some or all of these opinions.

Whether a defect is suggestive of danger depends upon the nature of the defect. A defective street railway track is not necessarily suggestive of danger unless the defect is an unusual one and unlike that described in the instant case. The defect itself is not visible to the conductor while he is engaged in his duty. He can only judge of the extent of it by alighting and making an inspection or by the degree of the jolt. He may well have knowledge of the defect in such case and yet not know the risk or danger he may assume by continuing in his breadwinning occupation. Darcey v. Farmers' L. Co., supra, was attempted to be distinguished in Williams v. J. G. Wagner Co. 110 Wis. 456, 86 N. W. 157, by the present chief justice on this very ground. ' It is there said that in the former case the dangerous appliances wore not connected with the machines about which plaintiff was working and were wholly or partially concealed from view while plaintiff was engaged at his ordinary duties, a distinction which must be admitted as pertinent in the instant case. It may be readily conceded that, where the defect is of such a nature that knowledge of its existence is equivalent to knowledge of the danger, the risk is assumed, but I think it must also be conceded that a situation may exist where knowledge of a defect is not knowledge of the danger, and this is well supported by precedents. To the competent lawyer this will substantially explain and distinguish every .case apparently to the contrary of this dissent.

The opinion in Dorsey v. Phillips & C. C. Co. 42 Wis. 583, was written by Chief Justice EyaN about thirty-five years ago. There was a special verdict, in which the questions were so answered as to entitle the plaintiff to judgment, but upon a motion for nonsuit denied and' upon exceptions to the, instructions and to the special verdict the question whether mere knowledge of the defect would alone defeat a recovery was raised and considered. The defect in that case was the proximity of a cattle chute to a railroad track, and it was there held that knowledge of the defect without knowledge of the danger would not defeat recovery. The court said:

“For though it certainly appears that the respondent knew of the general relation of the cattle chute to the track, it does not appear tRat Re knew, or Rad sncR means of information as would cRarge Rim with knowing, its precise relation to tRe track, its distance, and its danger. TRere is indeed evidence tending to sRow tRat Re Rad some impression of its dangerous proximity; pei'Raps not more tkan tRe vague idea of danger suggested by adjacent objects generally. Even this we understand Rim to deny. TRe court could not say, as matter of law, that Re knew of the extraordinary danger, and continued Ris employment at Ris own risk of it.”

In Haley v. Jump River L. Co. 81 Wis. 412, 51 N. W. 321, 956 (1892), this rule is reaffirmed and applied by Justice Winsnow in these words:

“The principle is that if the alleged defect or element of danger is such that, in the exercise of ordinary care, the plaintiff ought to Rave observed it and comprehended the danger likely to result, then he assumes the risk if Re continues in the employment without complaint.” Citing Dorsey v. Phillips & C. C. Co., supra; Ballou v. C., M. & St. P. R. Co. 54 Wis. 257, 11 N. W. 559; and Goltz v. M., L. S. & W. R. Co. 76 Wis. 136, 44 N. W. 752.

In the opinion on rehearing written by Justice Lyon in the Haley Case, 81 Wis. 412, 423, 51 N. W. 321, 956, it was said:

“TRe court was asked in a variety of forms, but refused, to cRarge the jury in substance that if the danger caused by the presence of the log in the ditch was known to the plaintiff, or might by the use of reasonable or ordinary care Rave been known to Rim, Re is presumed to Rave known it and assumed the risk. TRe proposed instructions do not malee the want of actual or imputed knowledge of the presence of the log the test of defendant’s liability, but make such test the want of knowledge, or reasonable means thereof, of the danger resulting from the presence of the log where it was left. Had the proposed instruction related only to knowledge that the log was there, the case would be within the rule in the Dorsey Case (Dorsey v. Phillips & C. C. Co.) 42 Wis. 583, and the Hulehan Case (Hulehan v. G. B., W. & St. P. R. Co.) 68 Wis. 520, 32 N. W. 529.” TRe word “danger” is italicised as above in the opinion.

In Luebke v. Berlin M. Works, 88 Wis. 442, 448, 60 N. W. 711, tbe rule is thus stated by Justice PiNNEY, speaking for the court:

“It is well settled that if the alleged defect or element of danger is such that, in the exercise of ordinary care, the servant ought to have observed it and comprehended the danger likély to result, then he assumed the risk if he continued in the employment.” Citing Haley v. Jump River L. Co., supra; Dorsey v. Phillips & C. C. Co., supra; Ballou v. C., M. & St. P. R. Co. 54 Wis. 257, 11 N. W. 559; and Goltz v. M., L. S. & W. R. Co. 76 Wis. 136, 44 N. W. 752.

Observe that the rule as there stated by Justice PiNNey goes a little beyond the cases cited to sustain it, but the idea that.there must be something more than the mere knowledge of the defect in cases where the defect is not necessarily dan-gerousUs quite plain.

In Peterson v. Sherry L. Co. 90 Wis. 83, 93, 62 N. W. 948, the expression is: “Defect ... or an element of danger not usual or incident to his employment, which he either knew or ought reasonably to have known and appreciated.” Kennedy v. Lake Superior T. & T. R. Co. 93 Wis. 32, 39, 66 N. W. 1137, was a case of a defective railroad track caused by allowing ash piles to accumulate thereon, and Cassoday, C. J., writing the opinion of the court, said:

“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 k mere vague surmise of the possibility of danger is not enough to take the case from the jury.” Citing the Dorsey Case, supra; Nadau v. White River L. Co. 76 Wis. 120, 132, 43 N. W. 1135; Kelleher v. M. & N. R. Co. 80 Wis. 584, 50 N. W. 942; Haley v. Jump River L. Co. 81 Wis. 412, 426, 51 N. W. 321, 956.

In Simonds v. Baraboo, 93 Wis. 40, 43, 67 N. W. 40, Mr. Justice Maeshall, writing the opinion of tbe court, said in a negligence case in which a city was defendant: “Previous knowledge was not of itself conclusive evidence of contributory negligence.” Citing among other cases the Dorsey Case, supra. In Curtis v. C. & N. W. R. Co. 95 Wis. 460, 468, 70 N. W. 665, Justice PiNNEY, writing the opinion of the court in the case of a negligent injury caused by an unblocked switch rail, said, quoting from the Kennedy Gase, supra:

“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.” Citing the Kennedy Case, supra, and the Dorsey Case, supra.

In Hennesey v. C. & N. W. R. Co. 99 Wis. 109, 74 N. W. 554, we find the majority opinion by Justice WiNsnow, in a case where a railroad roadbed was defective by reason of a visible open ditch therein and it was claimed deceased assumed the risk, saying:

“There being evidence tending t'o show that the ditch in question was substantially different from the openings at the other switches, and the dangers to be apprehended greater in degree as well as different in character, it cannot be said, as matter of law, that the intestate assumed the risk because he had not seen and appreciated the special danger at this one switch.” Citing cases.

Observe it is here not a question of knowledge of the defect, but of the danger which must not only have been seen but also appreciated, according to this case. There was a dissenting opinion by Mr. Justice Marshall in which it was suggested that the Dorsey Gase was not intended to go so far as it seems apparent that it does go and that' it was liable to be misconstrued. It seems to me the last is conclusively shown hy this dissenting opinion.

Hulehan v. G. B., W. & St. P. R. Co. 68 Wis. 520, 32 N. W. 529, was an action for negligent injury brought by an experienced employee against' his employer to recover for injuries caused by a defective track or roadbed-. The particular defect consisted of blocks of wood strewn along the track at a place where hrakemen were required to couple and uncouple oars. In affirming a judgment for the plaintiff Mr. Justice Taylob said:

“Even had he known of the existence of the wood lying along the side of the track at the place where he was injured, it would not he conclusive against him. He might have had á general knowledge of the defects of the road, but may not have had such knowledge of the dangerous character of such obstructions as to absolutely charge him -with the assumption of all the risks arising from such obstructions. Notwithstanding his knowledge of the fact of the obstructions, still it was a question for the jury whether he was guilty of negligence in remaining in the employ of the defendant after such knowledge.”

Apply this to the verdict in the instant case, where the jury found, not that the deceased knew of the defect in the track, but that he ought to have known of the existence of the defect, and followed that by a finding that with such knowledge of the'defect he was without knowledge of the danger of operating the car over such track.

All of the foregoing cases relate to assumption of risk by adults.

In Renne v. United States L. Co. 107 Wis. 305, 83 N. W. 473 (1900), Chief Justice Cassoday writing the opinion of the court, this rule was applied to an infant and reaffirmed, and it was noted that the rule had been applied in the case of- adult's and should not he less favorable in the case of an infant. Hocking v. Windsor S. C. 125 Wis. 575, 104 N. W. 705 (1905), appears to be a unanimous decision of this court written by Mr. Justice KeewiN twenty-eight years after the Dorsey Case. There the rule is reiterated and applied as follows:

“The general rule is that the servant assumes the usual •and ordinary risks of his employment; but before he can be held to have assumed an unusual or extraordinary risk he must know, or have reasonable means of knowing, the precise danger to which he is exposed and which he thus assumes, and a mere vague surmise of the possibility of danger is not sufficient to warrant the court in taking the case from the jury.” Citing cases.

Again: “Where there is doubt whether the servant assumes the risk the question is for the jury.” Citing Revolinski v. Adams C. Co. 118 Wis. 324, 95 N. W. 122; Grant v. Keystone L. Co. 119 Wis. 229, 96 N. W. 535.

I may add that this is the effect of the Dorsey Case and all cases following it.

Hemmingsen v. C. & N. W. R. Co. 134 Wis. 412, 114 N. W. 785 (1908), was a case where an experienced brakeman went between the platform and the track and was crushed and killed by a coming freight car. The platform was so close to the track that there was no room for the body of deceased between it and the oncoming car, and of course both the track and the platform and their proximity were visible, but the space between might have been gauged incorrectly. In affirming a judgment for the administrator of deceased, this court, by Justice KebwiN, said: “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.” Citing cases.

In Haring v. G. N. R. Co. 137 Wis. 367, 371, 119 N. W. 325, the Dorsey Gase is again mentioned with approval, and the case under consideration distinguished upon the ground that in the Dorsey Case, like the instant case, the servant was expected to occupy the unsafe place while in the performance of his duty. This brings the Dorsey Case down to 1909.

Looking abroad to ascertain whether there is anything local or novel about this doctrine and condensing the matter into as small a space as possible, I cite a few authorities.

Fitzgerald v. Connecticut River P. Co. 155 Mass. 155, 29 N. E. 464, where the subject is learnedly reviewed. This case has been followed many times in Massachusetts. Galveston, H. & S. A. R. Co. v. Smith, 24 Tex. Civ. App. 127, 57 S. W. 999; and see the note to Houston, E. & W. T. R. Co. v. De Walt, 97 Am. St. Kep. 877, 893 (96 Tex. 121, 70 S. W. 531), where the law on this subject is summed up as follows:

“There is a distinction between knowledge of defects in premises and appliances and knowledge of the risks and dangers that result from such defects. If an employee has knowledge of a defect, or is chargeable with notice of it because obvious, but is not aware of the danger incident to and attending it, he is not precluded from recovering damages incurred by reason of such defect.” Citing Nofsinger v. Goldman, 122 Cal. 609, 55 Pac. 425; Ill. S. Co. v. Schymanowshi, 162 Ill. 447, 44 N. E. 876; Ill. S. Co. v. Ryslca, 200 Ill. 280, 65 N. E. 734; Hartrich v. Hawes, 202 Ill. 334, 67 N. E. 13; Myhan v. Louisiana E. L. & P. Co. 41 La. Ann. 964, 6 South. 799; Christiansen v. Northwestern C. B. Co. 83 Minn. 25, 85 N. W. 826; Sullivan v. H. & St. J. R. Co. 107 Mo. 66, 17 S. W. 748; and other cases.

One may know the facts and not know the danger arising therefrom and still recover. Pool v. C., M. & St. P. R. Co. 53 Wis. 657, 11 N. W. 15; S. C. 56 Wis. 227, 14 N. W. 46. To voluntarily place oneself in a dangerous position is not such contributory negligence as will prevent recovery for an injury caused by the negligence of another, unless the danger is so manifest that no person of ordinary care or prudence would go or remain there under the circumstances. Lawson v. O., St. P., M. & O. R. Co. 64 Wis. 447, 24 N. W. 618. That a person injured through defect in a bridge knew of such defect before driving on the bridge does not establish contributory negligence as matter of law. Spearbracker v. Larrabee, 64 Wis. 573, 25 N. W. 555; Wheeler v. Westport, 30 Wis. 392. “Under such circumstances the danger is open and obvious; and when the danger is open and obvious, free from uncertainty and obscurity, and the servant of mature years and ordinary intelligence, he assumes the risk when he knows or ought to know that danger.” Gierczak v. Northwestern F. Co. 142 Wis. 207, 214, 125 N. W. 436. The foregoing is no doubt a correct statement of the law, but why is the word “danger” used by the usually accurate and learned chief justice if he meant “defect” ? In Halwas v. American G. Co. 141 Wis. 127, 123 N. W. 789, in discussing the assumption of risk it is said: “The plaintiff was not charged with the duty of inspection, and it does not appear that the defective and unsafe condition of the ground was so obvious as to charge him with knowledge of the danger.”

A cursory reading might suggest' some conflict between Stetler v. C. & N. W. R. Co. 49 Wis. 609, 6 N. W. 303, and Jones v. Milwaukee E. R. & L. Co. 147 Wis. 427, 133 N. W. 636. But the first mentioned proceeds upon a risk not assumed and considers the negligence of a fellow-servant which is an assumed risk co-operating with a cause for which the master was liable, while the second considers such negligence of a fellow-servant as co-operating with a cause for which the master was not liable, because the latter risk was also assumed; the danger in that case being obvious.

Where the physical condition of an arch was visible, but the jury found that the danger of its falling was not' apparent to deceased, an unskilled workman, a recovery was sustained. Gill v. Homrighausen, 79 Wis. 634, 48 N. W. 862. A man is not presumed to have assumed a risk which he does not comprehend. Jones v. Florence M. Co. 66 Wis. 268, 28 N. W. 207. Where an employee saw a freight car approaching him upon a down grade and got in front of it to stop it with a bar, it was held that his knowledge of the danger of so doing was not so apparent as to take the question of contributory negligence or assumption of risk from the jury. Gussart v. Greenleaf S. Co. 134 Wis. 418, 114 N. W. 799.

I do not hereby seek to apply to adults the rule applicable to infants. The latter must not only have known the danger, but also have appreciated the risk, before they can be charged with either contributory negligence or assumption of risk; but the rule that knowledge of all obvious dangers is imputed to an adult servant applies as well to minors so far as their age, experience, discretion, and judgment enable them to understand and appreciate these dangers. Van de Bogart v. Marinette & M. P. Co. 127 Wis. 104, 106 N. W. 805. I do not contend that, where the defect is of such a character that danger therefrom is imminent or obvious, mere knowledge of the defect is not knowledge of the danger or of the risk, or that the employee continuing in his work in such case does not necessarily assume the risk. The jury found upon ample evidence that a person of ordinary care, consequently this plaintiff, would not have known and appreciated the danger of operating the car over the track in question The word “appreciated” might have been properly omitted in the case of an adult, but that is entirely immaterial to the discussion or disposition of the instant case. If we strikeout or disregard «the finding that there was no contributory negligence, and the ninth finding, the plaintiff would still be entitled to judgment, because the mere finding of knowledge of such a defect does not establish knowledge of the danger or risk, and the affirmative defense of contributory negligence or that of assumption of risk not having been found against the plaintiff, no defense on either of these grounds is made out. It is enough that in the instant case the jury failed to find tbat tbe deceased assumed tbe risk by merely finding tbat be ought to have bad knowledge of tbe defect, tbe defect being of tbe character described. But tbe ninth question of tbe special verdict is not wholly immaterial. It, with tbe absence of any other finding of knowledge of tbe danger on tbe part of tbe deceased and with tbe undisputed evidence in tbe case, does negative tbe assumption of risk.

I can see nothing in the cases cited in the majority opinion to warrant the decision in this case. Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568, affirms a judgment for the plaintiff upon a promise by the inaster to repair, and recognizes the distinction here attempted to be made between defects which indicate an obvious danger and those which do not. Coel v. Green Bay T. Co. 147 Wis. 229, 133 N. W. 23, affirms a judgment' for the plaintiff, and in no manner relates to defect or notice of defect in a place to work or in an appliance. Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741, affirms a judgment for the defendant upon the ground of assumption of risk, but it is expressly stated in the opinion: “If it is meant that the chance of injury upon coming in contact with it was slight, we cannot agree with the contention.” the other cases, I think, are obviously not in point.

It is easy to say tbat tbe deceased, knowing of this defect in tbe track, must have known tbat it was dangerous to continue tbe employment, but tbat is so obviously incorrect in fact to any person of experience tbat it carries with it its own refutation. In fact it was no more dangerous than riding a horse or riding in an automobile or riding in a vehicle upon any imperfect highway.

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Concurrence Opinion

SiebbcKER and KekwiN, J<T.

We concur in tbe foregoing dissenting opinion of Mr. Justice TimliN.

A motion for a rehearing was denied, with $25 costs, on October 7, 1913.