107 Wis. 305 | Wis. | 1900
The following opinion was filed June 21, 1900:
This action was commenced February 17, 1899, to recover damages for personal injuries sustained 'by the plaintiff October 8, 1897j while in the employ of the ■defendant, and riding upon the top of a freight car, for the purpose of setting the brake thereon, while being backed into its yards, by being swept from the top of the car by -an exhaust pipe extending horizontally from its boiler house to its beam house, over its side track or tracks, and
At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at $20,000. Erom the judgment entered thereon for that amount and costs, the defendant brings this ■ appeal.
In addition to the facts thus admitted in the answer, it appears from the evidence, and is undisputed, that about 2Y0 feet east of the exhaust pipe in question was the west end of the defendant’s office, with the scales under the main track, just north of it; that thirty-nine feet west of the office was a switch to a side track coming from the west, along the north
■ Such is a general summary of the situation and circumstances under which the accident occurred.
1. Error is assigned because the court admitted testimony-tending to prove that the exhaust pipe in question might, at small cost and without injury to its efficiency, have been raised so as not to interfere with the defendant’s employees riding upon the top of its freight cars. The reason given for such contention is that, as against the plaintiff, the defendant had the right to construct and locate the pipe as, in its judgment, would best accommodate its interest. The cases cited from this court in support of such contention all turn upon the assumption of risk, which will be considered later. Naylor v. C. & N. W. R. Co. 53 Wis. 661; Casey v. C., St. P., M. & O. R. Co. 90 Wis. 113; Guinard v. Knapp, Stout & Co. Company, 95 Wis. 482; Osborne v. Lehigh Valley C. Co. 97 Wis. 27; Mielke v. C. & N. W. R. Co. 103 Wis. 3. And yet in all these cases the duty of the master to furnish a reasonably safe place in which the servant may perform his labor is recognized. Thus, in the
It is undisputed that the exhaust pipe in question was, by actual measurement, fifteen feet and two and one-half inches above one of the rails directly under it, and a quarter of an inch nearer to the other rail. The height of the car in question, on the top of which the plaintiff was riding at the time of the accident, was twelve feet and five and one-half inches from the top of the rail to the top of the running board — in other wTords, it was two feet and nine inches from the top of that car to the exhaust pipe, and that car, which was a foreign car, was thirteen inches higher than the common box cars in use on the Wisconsin Central Eail-way (in other words, the top of the common box car in use on the Wisconsin Central was three feet and ten inches below the exhaust pipe in question); and such Wisconsin Central cars were the ones in general use in the defendant’s yards. We must hold that there was no error in admitting the evidence complained of.
It follows from what has been said that there was no error in submitting to the jury, in the general charge, the question whether the defendant was in the exercise of ordinary care
2. The more difficult question is whether the plaintiff assumed the risk of such danger. It is undisputed that the plaintiff commenced work for the defendant in April, 1897; that he was employed as an errand boy to run errands, build fires, sweep out, and like chores, and that he should help-the engineer, Payne, do the braking, if he had time; that he was sixteen years of age July 21, 1897, and hence two months and seventeen days older at the time of the accident; that prior to such employment by the defendant he had attended school eight months of each year, and worked on his father’s farm, in the country, the balance of the time; that he weighed 144 pounds, but had never worked around railway stations or cars, or a sawmill, or farm machinery, or any machinery. The plaintiff testified to the effect that prior to the accident he had passed under the pipe on box cars seven or eight times — possibly ten times,— but that only two or three went upon the hide-house track, and they went further west than the chemical platform, where the car in question was to stop; that the other cars went on the other tracks to the bark sheds, still further west than the hide house; that he had never ridden upon the top of a car
Such testimony of the plaintiff, or a considerable portion ■of it, was corroborated by other evidence. One witness, who saw the plaintiff when he was struck by the pipe, testified that the plaintiff had just straightened up, and was about eight feet from the east end of the car, when he was struck just about across the shoulders by the pipe; that as the pipe hit him he threw up his arms, and was pushed headfirst over the end of the car. It appears that the track at .and near the hide house was nearly level, and that the same was true of the other track at and near the bark shed, but that at or near the chemical platform the grade was at the rate of two feet in every 100 feet.
Upon such evidence, can we say, as a matter of law, that the plaintiff assumed the risk ? In other words, Did such ■evidence justify the court in charging the jury as follows: The plaintiff “ certainly knew the pipe was there. Any person would know that if he were on top of a rapidly moving box car, and came in collision with this pipe, he would be in danger. But did plaintiff know, or have such means of information as would charge him with knowing, the precise relation of the pipe to the track, to the box car, its distance from the box car, and the danger-of passing under on such ■a car? If he did not know or have means of knowing these facts, and, from youth or inexperience, could not reasonably be expected to know them, and wTas not sufficiently warned ■of the danger, he would not be held to assume the risk of his employment. So, in these instructions as to the dangers which the plaintiff knew or ought to have known, I think you should not only consider that he knew the pipe was
Counsel for the defendant seem to think that the jury were misled by the use of the words “ appreciated the precise danger,” in the portion of the charge quoted. The words “ precise danger ” were manifestly taken from a portion of Chief Justice Ryan’s opinion in the Dorsey Case (42 Whs. 597), quoted above. They are there used to distinguish the extraordinary risk ” to which the plaintiff was subjected from “ the ordinary risks of the service.” As used in the charge in the case at bar, they are explained, as applicable to “ the relation of the pipe to the track, to the box car, •and its distance from the box car, and the danger of passing under on such a car.” They simply called the attention ■of the jury to the particular danger of the plaintiff being knocked off the car by the pipe while on the top of the car, as distinguished from dangers generally by reason of working in the defendant’s yards, and hence were used to prevent •the jury from being misled.
There was no error in submitting to the jury the question whether the plaintiff “ appreciated, or ought to have appreciated,” such danger. To appreciate such danger was “ to
3. Erom what has been said, it is obvious that the trial ■court was justified in submitting to the jury, with appropriate instructions, the question whether the defendant was
4. It is contended that the undisputed evidence shows that the plaintiff was guilty of contributory negligence. This is based upon the assumption that he knew the height of the pipe above the track and above the car; that upon former occasions he had ridden upon the ladder at the side of the car until it passed under the pipe, and reached to or near its place of destination, before going upon the top to-set the brake, and that in the case at bar he went upon the top of the car before it passed under the pipe, and then failed to remember the overhanging pipe, so as to avoid being struck by it. In support of the verdict in favor of the plaintiff, we are required to consider the evidence in his behalf in the most favorable light it will legitimately bear. Tovmley v. C., M. & St. P. R. Co. 53 Wis. 626; Kaples v. Orth, 61 Wis. 531, 533; Adams v. C. & N. W. R. Co. 89 Wis. 645. According to such evidence, it appears that all other cars which passed under the pipe, and upon which he set the brakes,, were destined to places considerably west of the chemical platform, and where the grade was comparatively level, and
5. It is contended that the damages "are excessive. The plaintiff was injured between four and five o’clock in the afternoon of Friday, October 8, 1897, and remained unconscious until the following Sunday, but his recollection of what occurred on the day of the accident and before did not begin to come back to him until about two weeks after the injury. The medical testimony tends to prove that when he was found, after the accident, his right arm was. nearly severed between the shoulder and the elbow,— a little nearer to the shoulder than the elbow; that that arm was at once amputated about two inches below the shoulder-joint, and dressed; that the left arm was dislocated at the-elbowT; that the ulna was dislocated backwards and downwards; that the radius was dislocated from the ulna, up
By the Court.— By reason of such excessive damages, the judgment of the circuit court is reversed, and the cause is. remanded for a new trial, but with the option on the part of the plaintiff, to be exercised within thirty days after the filing of the remittitur from this court in the trial court, to. remit, in writing, from the verdict, all damages in excess of $12,000, and -file such remission with the clerk of the trial court, in which event judgment is to be entered thereon for the amount stated, as damages, and the costs and disbursements in the circuit court.
The most important question presented by this appeal is, Was the evidence sufficient to carry the case to the jury as to whether Renne knew or ought to. have known of the danger of standing on a box car while it was passing under the exhaust pipe? It seems that such
The conceded facts above referred to are stated in the opinion of the court in substance as folLows: The pipe was thirty-three inches higher than the running board of the car on which Renne was riding when injured and forty-six inches higher than the running board of an ordinary car. Such facts, in connection with the undisputed evidence that-the boy was five feet nine inches tall and weighed 144 pounds — •a man, almost, in stature and physical development — show conclusively that the testimony indicating that the exhaust pipe was as high as his shoulders as he was walking on the running board of the car, is not entitled to any consideration, leaving no room for belief that the boy could have failed, had he exercised reasonable attention to his surroundings during the months prior to his injury, to have known that the pipe was too low to admit of his safely passing under it
From what has preceded it seems that in deciding the controversy of whether there was evidence to warrant a finding' that Renne knew, or ought to have known, the dangers incident to his employment, as the work was being carried on, occasioned by the location of the exhaust pipe, we must face the fact that such pipe would have been two feet lower than the top of his head if he had been standing at the time of his injury on such a car as those with which he was .perfectly familiar and had often assisted in operating under it. In that view we venture to say that there can be but one reasonable conclusion: A boy of ordinary comprehension, of the age of Renne, possessed of his experience and circumstanced as he was for months before his injury, could not reasonably have failed to have observed the dangerous location of the pipe. It was but about two thirds of the boy’s height above the running board of an ordinary car. To safely pass under it, standing on such running board, he would necessarily have been required to have bent his body down at an angle of over 45°. A situation so dangerous as that could not reasonably escape the notice of any sixteen-year-old boy capable of working at the handling of cars if he paid any reasonable attention to his surroundings.
It follows, in my judgment, that Renne knew, or was;
To my mind, the danger which menaced the plaintiff was so open and obvious, and so well known to him, that it should have been held, as a matter of law, that he assumed the risk of accident. Uo warning that the defendant could have given him would have made it more apparent. He simply forgot the existence of the pipe, and his forgetfulness cannot be charged to the defendant. The real inquiry was, Did plaintiff know, or ought he, under all the circumstances, reasonably to have known, that there was danger of accident from the proximity of the pipe in question to the top of the car? If he did, then he assumed the risk, and all the discussion over “ knowledge of the precise danger ” and “ appreciation of the risk ” leads to confusion, rather than enlightenment. I agree that the damages are excessive.
A motion for a rehearing was submitted for appellant on the brief of Gate, Sanborn, Lamoreuos <& Park, attorneys, and Geo. W..BircL, of counsel.
Motion denied September 5, 1900.