Promer v. Milwaukee, Lake Shore & Western Railway Co.

90 Wis. 215 | Wis. | 1895

Pinney, J.

1. There is, no doubt, a considerable degree of danger attending tbe service in which tbe plaintiff was engaged as one of tbe night repair force in tbe defendant’s yard, where trains were frequently arriving and departing, and cars, singly or in number, were continually being shunted or driven back or forth on tbe various tracks, or switched from one to another; and there can be no doubt but that tbe dangers which are unavoidable, in tbe exercise by tbe company of reasonable care and precaution in guarding its employees against such perils, are assumed by them in consenting to accept employment under snob circumstances. But the employee does not assume the risk of those dangers which are known by, and can be obviated or avoided by the exercise of reasonable care and caution on the part of, 'the company. The company is bound to take reasonable care and caution to protect those working in its yards from such dangers, and it would be liable for damages sustained by any employee in consequence of its neglect or failure to discharge its duty in that regard. The duty is one arising, from the relation of master and servant, and the servant has a right to assume, until he has knowledge to the contrary, that the master has taken and will adopt such reasonable measures as are within his power to protect him against such dangers while engaged in his work. In whatever manner the company may choose to discharge its duty, it still continues, though it be delegated to one or more of its officers or servants, and it cannot by reason of such delegation claim exemption from liability for injuries occasioned by its nonperformance. The master is required to furnish the servant with proper and suitable tools and instruments for his use, and a safe and proper place in which to perform his work, and while requiring the performance of work by a servant in a place which may be or has become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger; that is to say, such as may be avoided by the exercise of reasonable care and caution on the part of the master. Bessex v. C. & N. W. R. Co. 45 Wis. 481, 482; Kelleher v. M. & N. R. Co. 80 Wis. 584, 588; Smith v. C., M. & St. P. R. Co. 42 Wis. 520; Laning v. N. Y. C. R. Co. 49 N. Y. 531, 532; Corcoran v. Holbrook, 59 N. Y. 517; McGovern v. Cent. Vt. R. Co. 123 N. Y. 280, 287, 288; Moore v. W., St. I. & P. R. Co. 21 Am. & Eng. R. Cas. 509.

The conditions and circumstances under which, the plaintiff was required to perform his service in the yard, as well as its dangers, and what reasonable care and, caution the company could and ought to have observed in shunting, kicking, or moving cars, particularly in the night-time, when the plaintiff had to perform his work, was, we must assume, well known to its foreman, Blake, who, it appears, was on the engine and in charge of its work, and directed the passenger coach to be kicked down the main track, by reason of which the plaintiff was injured. The evidence does not show how far the coach had been driven before it came upon the main •track where the engine let go of the coach by the direction of Blake, about 300 feet distant from where it struck the plaintiff. The evidence tends to show that it came on the mam track somewhat from the south and on a curve, and that the switch could not be seen from where the plaintiff had been working, and, although a man with a lantern was -on the rear of the car, there was no one nor any light on the front of the car, and no locomotive was attached to it, to admonish employees of its comparatively noiseless approach and the danger that might ensue. The manner in which the car was thus left to run its course, as to employees in the yard, was, in a very considerable degree, attended by the perils and risk consequent upon making a running switch,— a proceeding usually considered as a negligent act, and attended with great danger (Ward v. C., St. P., M. & O. R. Co. 85 Wis. 601, and cases cited); and if made across a frequented street in the night-time, without providing any signal of danger or giving any notice of the approach of the rear section, is held to be negligence as a matter of law (Delaware, L. & W. R. Co. v. Converse, 139 U. S. 469).

The evidence tends to show that, by the adoption of reasonable precautions within its power, the company could have given the plaintiff timely warning of the danger to which he was' exposed, and thus guarded him against the injury be sustained, and that it failed to discharge its duty to him in this respect. The presence of a brakeman with a. light on the front of the car, or of an engine attached to it,, to give warning by sound as well as by light, and to regulate its speed or reverse its course, are among the expedients-that might have been reasonably adopted. So far as we-can discover, no such or similar measure was adopted, and the company or its representative, the foreman, in driving the coach along the main track in the manner and under the-circumstances stated, practically ignored the presence of the-plaintiff and others of the night crew at work in the yard,, and took no measure whatever to protect him against the-dangers to which he was thus exposed.

We think, too, that there was sufficient evidence of the defendant’s positive negligence to require the submission of the case to the jury, independent of its alleged neglect of duty. It appears the foreman directed an employee of the-company, when the coach was kicked and cut off, to ride it. down along the track, and it is said that this employee negligently discharged the duty devolved on him, by riding on. the rear instead of the front of the car, and so that the injury may be said to have been the result of the negligence-of a fellow-servant of the plaintiff, for which there can be-no recovery. The act charged as negligent was, as we have-said, the act of Blake, the foreman in the yard at the time,, and acting, it would seem, as engineer; and if he was a fellow-servant of the plaintiff the defendant company would,, notwithstanding, be liable, under the provisions of the statute (S. & B. Ann. Stats, sec. 1816a), for the consequences of his negligence. Evidently the riding of cars in the nighttime by a brakeman or employee on the front end with a lantern, may serve to signal the approach of the car or cars- and regulate or stay their, course by means of the brake, and operates as a precaution calculated to prevent accident, and injury to the workmen in the yard. It may properly "be considered as a reasonable precantion and measure of safety which, it was the' duty of the company to take for that purpose, and in that view the servant of the company riding the coach in the present case was charged by the-company, through its foreman, with the duty the company owed the plaintiff and others, its employees at work in the yard. He was the agent of the company for the performance of that duty, and his failure to properly perform it is to be imputed to the company, and its liability for nonperformance of its duty would still remain. Smith v. C., M. & St. P. R. Co. 42 Wis. 526, and cases cited; Laning v. N. Y. C. R. Co. 49 N. Y. 521; Cadden v. Am. S. B. Co. 88 Wis. 418, 419; McGovern v. Cent. Vt. R. Co. 123 N. Y. 288.

We think it was a question of fact for the jury to determine from the evidence whether working at night by the-plaintiff in the defendant’s yard was attended with danger not fairly incident to his employment, and which could have been foreseen and guarded against by the defendant by the exercise of reasonable care and prudence, and whether the plaintiff’s injury was caused by its neglect to adopt such reasonable precautions as were necessary to protect the-plaintiff from such danger.

2. The risk consequent upon the failure of the company to properly discharge its duty to the plaintiff, as its employee, is not one of the ordinary risks incident to his employment, and the plaintiff did not assume the consequences-of it by accepting and entering upon his work. Rut if the-negligence of the company, or element of danger, though not incident to his employment, was open and obvious, or such that the servant, in the exercise of ordinary care, ought to have observed it and comprehended the danger likely to-result, then he assumed the risk if he continued in the employment. There is no evidence tending to show that the plaintiff, by continuing in his employment, assumed the risk of injury from the defendant’s failure to properly perform any of its duties to him as its employee.

As to negligence in respect to flying switches or detached cars moving by their own momentum, see note to Kentucky Cent. R. Co. v. Smith, in 18 L. R. A. 68. — Rep.

3. The testimony of the plaintiff and his companion, Yan Alstine, is to the effect that they did not see the car nor hear anything indicating its approach, and tends to show that from where they were at the time they could not see up to the switch where it came upon the main track. The testimony on this subject is not entirely clear, but it wholly fails to show that anything was done to warn them or signal the approach of the coach. They started east towards the depot, their backs to the switch, and the plaintiff testifies that he was walking between the two tracks and not between the rails of the main track, and Van Alstine’s evidence tends to the same conclusion. The entire evidence on the' .subject is not so clear and decisive as to. justify the court in withdrawing the question whether the plaintiff’s negligence contributed to his injury from the jury. “ The question of contributory negligence is eminently proper for a jury to determine, and when the evidence does not clearly and indisputably show such negligence or want of care on the part of the plaintiff, so as to leave nothing to submit to the jury on the opposite theory or position, a nonsuit should not be granted.” Houfe v. Fulton, 29 Wis. 296; Bessex v. C. & N. W. R. Co. 46 Wis. 483; Valin v. M. & N. R. Co. 82 Wis. 1, 6, and cases cited.

Eor these reasons the nonsuit was improperly granted.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.