221 Wis. 35 | Wis. | 1936
The following opinion was filed February 4, 1936:
Fred H. Schiefelbein, hereafter called the decedent, was employed by the defendant for many years prior to December 11, 1932, the date of his death. He was concededly an efficient and careful employee. For several months prior to December 11, 1932, he had served as a member of a night switching crew in the defendant’s yards at New Lisbon. The switching operation which the crew
It is conceded that the action was properly brought under the Federal Employers’ Liability Act (45 USCA, §§ 51— 59), since the switching crew was performing an act in furtherance of interstate commerce. That statute in part provides:
“Every common carrier by railroad . . . shall be liable in damage . . . for . . . death resulting in whole or in part from the negligence of any of the . . . employees of such carrier.”
The defendant first contends that the court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict. Those contentions may be considered together. It is well established that an employee who seeks recovery from a railroad for injuries sustained by him, or where recovery is sought for the death of an employee, under the provisions of the Federal Employers’ Liability Act, negligence on the part of the railroad which in whole or in part caused the injury or death, must be affirmatively established. Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 501, 502, 34 Sup. Ct. 635; Southern R. Co. v. Gray, 241 U. S. 333, 339, 36 Sup. Ct. 558; New York Central R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546; Erie R. Co. v. Winfield, 244 U. S. 170, 172, 37 Sup. Ct. 556; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 361,
The defendant argues that the plaintiff did not meet the burden of showing to a reasonable certainty that decedent’s injuries and death were caused by or resulted in whole or in part from the negligence of the defendant. The only causal negligence found by the jury was that of Olson, the plaintiff’s fellow servant. If Olson, under all of the circumstances, was properly found to have been negligent, and if such negligence resulted in whole or in part in the injury and death of the decedent, then the plaintiff is entitled to recover under the federal act.
Without reciting at length the testimony adduced upon the trial, we conclude that the jury was reasonably warranted in drawing the following inferences: The decedent was an experienced, efficient, and careful railroad employee. Just prior to, and at the time he was injured, he was performing work which it was his duty to perform. His injuries were such as clearly to indicate that his head was caught and crushed between either the heavy clevises attached to the cars or the heavy links of the safety chains attached to them when the engineer, pursuant to Olson’s signal, slacked back to permit the coupling pin to be pulled and the couplers to be released. The decedent, at the time his head was caught between the clevises or the chains, was in a stooping posture between the cars and engaged in doing work which reasonably required
The defendant next contends that the court erred in failing to submit to the jury a question relating to decedent’s assumption of the risk involved in uncoupling the cars and in going between them, since he knew all about the conditions and dangers incident to that particular operation. While the decedent was familiar with the uncoupling operation and all of the movements and acts necessary to accomplish it, he did not assume the risk of the negligent acts of his fellow servant. Hackett v. Wisconsin Central R. Co. 141 Wis.
“The failure to submit the question of assumption of risk was not error. The negligence . . . was that of a fellow servant of plaintiff. As to^ such negligence there is, under the federal law, no assumption of risk by a coemployee, until at least actual knowledge of such particular negligence is brought to his attention, or it is so obvious that the ordinarily prudent person would observe it.”
In Illinois Central R. Co. v. Norris (C. C. A.), 245 Fed. 926, 930, it was said:
“Nor did the deceased assume the risk of such signal being carelessly given. We may well accept the statement that each employee, in switching operations, was to look out for himself, and yet a brakeman could not be said to have assumed the risk arising from the negligent conduct of the conductor. The brakeman was not chargeable with notice that his fellow employee would violate a rule or a custom. He had reason to believe the conductor would not move the train while he was between the cars. If, as the conductor said, it was his duty to look out for the brakeman as much as possible, the brakeman had a right to assume that such duty would not be violated.”
There is no testimony which brings this case within the rules of such cases as Molovasilis v. Chicago, M. & St. P. R. Co. 179 Wis. 653, 191 N. W. 582, and Zarcone v. Payne, 176 Wis. 240, 186 N. W. 415, which held that, “where the negligent conduct of a coemployee is of such frequent occurrence as to charge persons of reasonable care and prudence with knowledge that it is dangerous to work with him, and the coemployee, notwithstanding such knowledge, continues in the employment without protest, he assumes the risk arising from the negligent practices of his fellow servant.”
The defendant finally contends that the court erred in not granting a new trial because the verdict as rendered was perverse. The defendant argues that it was the duty of the decedent to exercise ordinary care for his own safety, and that his act in going between the cars was negligent and as a matter of law a contributing cause of the accident. It is our opinion that the jury was justified under the proven circumstances in concluding that the decedent was not negligent. Clearly, if Olson had warned him or awaited word from him that his work was completed before signaling the engineer to slack back, the unfortunate accident would not have happened.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on March 31, 1936.