44 Wis. 44 | Wis. | 1878
This case has been once before this court, on appeal from a judgment dismissing tbe complaint, and will be found in 41 "Wis., 478. We then held that tbe facts stated in tbe complaint showed an actionable injury, and reversed the judgment. Tbe cause went back for trial, and, on tbe trial, when tbe plaintiff rested, the defendant moved for a nonsuit, which was denied. Again, at tbe close of tbe testimony on both
We are very clear in the opinion that the court was right in refusing to withdraw the case from the consideration of the jury, on the question of defendant’s negligence. It is said by the learned counsel for the defendant, that there was no evidence to go to the jury upon the question of the failure of the company to perform any duty which it owed the plaintiff, oi that the injury complained of was caused by a defect in the freight car, or in the braking machinery furnished the plaintiff to operate, or that the cars were not in perfect order. The contention of the plaintiff was, that the bolt in the brake-beam, or draw-bar, unskillfully projected in the way of a brakeman coupling the cars, and was suffered so to remain out of place, thereby increasing the danger of his employment. We think there was evidence from which the jury might well have found that this bolt did project through the bar or beam farther than was necessary, so as to make the act of. coupling the cars unnecessarily hazardous. The conductor, Stoclcwell, testified that he was present when the accident happened, and had his attention called to this bolt by the fireman; that he measured it with his hands, and that it extended through the draw-bar about twelve inches. The employee, McG-ilvera, testified substantially to the same fact, that the bolt was out very nearly even with the draw-bar, or nearly twelve inches. It was a question for the jury, upon all the evidence, whether this condition of the bolt constituted a defect in the braking machinery, which enhanced the risk of the plaintiff in coupling the cars, and which the comjjany was under obligation to rem'edy.
There was abundant evidence that this bolt caused the injury. The plaintiff in his testimony says, that as he went to pass between the moving and stationary car to the opposite side of the track, to give the engineer the signal to stop, he
The third error assigned is, the refusal of the court to give the'last four instructions asked on the part of the defendant. We think all these instructions were open to objection, and were properly refused. The fourth instruction refused was to the effect that, if the car became defective in the particular complained of, after it was put in use, about five years ago, and before the injury occurred, May 31, 1875, the defendant was not liable for such defect, unless it neglected to have the defect remedied after it had notice of the same. On the former appeal it was said that the company was bound to take due care, and use all reasonable means, to guard against defects in its cars, which would endanger the lives and limbs of its employees while in the performance of their duties; and the same rule of liability was affirmed in Smith v. The C., M. & St. P. Railway Co., 42 Wis., 520. If the projection of the bolt in the brake-beam in question constituted a defect, it was obvious and palpable, and was not a latent defect like that in the brake-rod in the Smith case. If the car became defec-
The fifth and sixth instructions refused embrace essentially the same proposition, viz., that if the plaintiff had as good opportunity or means of knowing of this defect in the car as the defendant had, and did not know it, but- overlooked it, this was such negligence on his part as prevented a recovery. The court had previously given the first instruction asked, which was, that if the plaintiff was careless, heedless or negligent at the time the injury occurred, and such carelessness, lieedlessness or negligence materially contributed to the injury, he could not recover. This instruction covered the question of contributory negligence. The court could not charge, as a matter of law, that if the ¡jlaintiff had means or an opportunity of knowing the defect, but did not notice it, this was carelessness on his part. It does not appear that the plaintiff was familiar with this car, or had ever before had occasion to couple it to others. At the moment of his fall, and in his effort to cross the track to signal the engineer to stop the train, his attention would naturally be diverted from the projecting bolt. Situated as he was, he might have overlooked or not have noticed the bolt without any imputation of carelessness. At all events, the question of contributory negligence was peculiarly one of fact for the jury, in view of all the circumstances attending the transaction. Butler v. The Mil. & St. P. Railway Co., 28 Wis., 487.
The seventh instruction was to the effect, that, as the plaintiff was in charge of the car at the time of the injury, it was his duty to have observed any defect, and avoided it, if. dangerous, and if he did not, it was negligence, and the defendant was not liable. It does not appear that the plaintiff had any special charge of the car, except what is implied from his service as brakeman, or that he was intrusted with any duty of inspecting it. We have said that the company was under obligation to use reasonable means to guard against defects in
Yarious exceptions were taken to the general charge of the court, which are relied on to reverse the judgment. We do not deem it necessary to notice these exceptions in detail. It is sufficient to say that we have carefully considered the charge, and do not think it is obnoxious to any fair criticism. It is clear, accurate and discriminating, and covers the law of the case.
The last error assigned is the refusal of the court to grant a new trial. If we are correct in the views already expressed, a new trial was properly denied.
By the Gourt. — The judgment of the circuit court is affirmed.
