95 Wis. 327 | Wis. | 1897
The claim of the plaintiff is stated in the-brief as follows: “Respondent rests upon the statement that, the death of Nash -was brought about by the unusual and dangerous manner of loading the lumber car over the end, in conjunction, possibly, with the fact of the short draw-
But it is said that the drawhead on the tender was shorter by several inches than the drawhead of ordinary freight •cars, and that that might have misled him. It is said that he might not have known this fact, or have been temporarily forgetful of it. It is suggested that, with seven inches more ■of space between the end of the timber and the tender, he might have come from the collision in safety, as if he could speculate upon such chances without the imputation of negligence. Doubtless he was, for the moment, oblivious of the danger attending the performance of the act he was about to perform. It cannot be assumed that he intended suicide. His forgetfulness was his own misfortune, rather than the defendant’s fault. It was one of the risks of the employment which he had assumed. There is no conflict in the testimony. The inference proper to be drawn from the testimony is not in doubt. It is not shown that the defendant failed in any duty which it owed to the deceased. The ■death was due to one of the ordinary risks of the employ
By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.