Paine v. Eastern Railway Co. of Minnesota

91 Wis. 340 | Wis. | 1895

■ WiNSlow, J.

We think the case is one which should-have been submitted to the jury. The circuit judge, in nonsuit-ing the plaintiff, said substantially that if the plaintiff’s claim was that the blocking was originally defective, then the court would be bound to hold that the deceased assumed the risk; if, on the other hand, the claim was that the blocking was sufficient originally, but had fallen .out of repair, then there was a failure of proof to show that the defendant had actual notice of the defect, or that it had existed for such length of time that the defendant' ought to have known it. As to the first branch of the proposition, it seems to have been based on evidence tending to show that all the blocking used in the yard at the many guard rails was uniform in its construction, as originally put in. If this appeared without dispute, it would seem that, the deceased should, during his nine or ten months of service, have seen and known the danger, and appreciated the risk, if there was any, and that the conclusion of the circuit judge on this point was correct. If, on the other hand, the fact should be established that only this particular block was. defective in construction, the deceased could not, as matter of law, be charged with assumption of the risk. Colf v. C., St. P., M. & O. R. Co. 87 Wis. 273.

Nor can it be held that, if the blocking became defective through wear, there must be proof of actual notice to the company of its condition, in order to create a duty to repair the defect or renew the blocking. The company owes a greater duty- to its employees than that of mere repair after receiving notice of a defect. It owes them the duty of careful and vigilant inspection to discover and remedy such defect. The duties of its yard employees are in a high degree dangerous. They assume the dangers reasonably incident to their occupations, but not the dangers resulting from failure to reasonably perform the duty of inspection and repair of roadbed and apparatus. When the plaintiff had introduced evidence tending to sbow that tbe blocking in question bad become defective by wear, so as to be no longer efficient to obviate tbe danger of catching tbe foot of tbe employee, be showed enough to take to tbe jury the question as to whether tbe defendant bad performed its duty of inspection and repair of its tracks. Were tbe testimony such as to show a sudden break from a bidden defect, tbe question would be different; but here, tbe evidence being that tbe defect was the result of gradual wear, tbe reasonable inference is that tbe defect had existed for some time, and it was for tbe jury to say whether the defendant company was negligent in not inspecting its track and discovering and remedying tbe defect before tbe accident.

It is claimed that there is no evidence in tbe case from which it can be inferred that tbe death of Strader was in any way tbe result of any defect in tbe blocking. We cannot agree with this claim. Tbe presumption is that the deceased did not deliberately place himself upon tbe track. His foot was between tbe two rails a few inches south of tbe Y-shaped opening between tbe guard rail and tbe main rail, where it might very naturally be in case it bad been accidentally caught at tbe flaring opening and bad been pulled southward as tbe result of the struggles of tbe deceased to get away from tbe approaching car. What tbe deceased was doing at the moment when bis foot was caught, if it was caught, we know not. It does not follow that be was negligent because be was in front of tbe car. He bad a right to ride tbe car. Perhaps be was attempting to get on. Perhaps, on tbe other band, be was about to. lead the car, and was preparing the coupling link or pin for coupling it onto tbe stationary cars. Negligence cannot be assumed by tbe court solely from tbe fact that be was in front of tbe car, because his duties were there, or at least may have been there. It is not tbe case of a passenger or foot traveler who goes in front of a moving train.

Our conclusion is that there is sufficient evidence to send to the jury the question whether the accident was caused by the defective blocking, and that the court is not justified in saying, as matter of law, that the deceased was guilty of contributory negligence from the fact that he was in front of the moving car.

The plaintiff attempted to prove by witnesses familiar with the blocking used in the defendant’s yard that, as the guard rails were usually blocked in that yard, it was impossible for the foot to be caught. The object was to show that ■this particular block in question was out of repair. Objections to these questions were sustained, and exception was taken. We think the evidence should have been allowed. If such was the fact, it was undoubtedly proper to be proved, as bearing upon the question whether the deceased assumed the risk. We think, also, it was proper to show by railroad men that, if guard rails are properly blocked, the foot could not be caught. The question Avhether a guard rail not properly blocked is dangerous is not a proper question. This is one of the ultimate questions for the jury to decide, after being put in possession of all the facts. It is' not a question for a witness.

By the Oonrt.— Judgment reversed, and action remanded for a new trial.

Maeshall, J., took no part.