184 Wis. 110 | Wis. | 1924
The following opinion was filed April 8, 1924:
By its answer to the first question of the special verdict the jury found that the defendant failed to exercise ordinary care in putting the cinder dump on which York was riding in use with the accumulation of frozen cinders .on the platform at the back end of the car. De
The condition of the platform was not solely the result of natural causes. During a rainfall at this period of the year the' platform naturally becomes slippery from an ensuing frost, while during a snow-storm snow will be deposited upon the platform, which, when the thermometer rises above the freezing point, is liable to melt, and upon frost recurring thereafter is liable to produce a slippery condition. These are natural and ordinary conditions for which the company ordinarily is immune from the charge of negligence under the authorities. Where the condition, however, is not the result of natural causes, but is due to. the acts of the defendant or its employees, a different situation arises. The conditions, however, may be the result of a combination of natural and artificial causes, and'ft appears that when such a combination exists, and where the artificial cause is created by the acts of the defendant or its employees, a proper jury issue on the subject of negligence is raised. See Salzer v. Milwaukee, 97 Wis. 471, 73 N. W. 20; West v. Eau Claire, 89 Wis. 31, 61 N. W. 313; Melody v. Des Moines U. R. Co. 161 Iowa, 695, 141 N. W. 438.
As above stated, water is poured over the cinders where the cars are loaded, and there is testimony in the case from which the jury could readily infer that the frozen condition of the cinders and the ice on the platform resulted from the
The federal Employers’ Liability Act was enacted by Congress in order to minimize accidents. Under such act the company becomes liable where a death results in whole or in part from the negligence of any of the officers, agents, or employees of the company, or by reason of any defect or insufficiency due to its negligence in its cars, etc.
In Calhoun v. G. N. R. Co. 162 Wis. 264, 156 N. W. 198, the defendant was held liable for negligence where the em
Defendant’s counsel strenuously contend that under the record it must be held that York assumed the risk with respect to the condition of the platform. The question of assumption of risk was submitted to the jury by questions 3 and 4 of the special verdict and were answered adversely to the defendant.
“An employee by his very act of entering the service of the employer — by his very contract of employment — assumes the 'ordinary’ risks of the service or such as usually are incident thereto, and if he be injured solely by reason of those perils he is not entitled to recover.” 18 Ruling Case Law, 671; Nadau v. White River L. Co. 76 Wis. 120, 43 N. W. 1135; Bormann v. Milwaukee, 93 Wis. 522, 67 N. W. 924.
The question of assumption of risk is ordinarily one for the jury “unless the facts are inconsistent and present a situation so plain that intelligent men would not draw different conclusions.” 18 Ruling Case Law, 676; Guinard v. Knapp-Stout & Co. Company, 90 Wis. 123, 62 N. W. 625.
It appears from the record that York had been employed as a freight brakeman for the defendant company a number of years prior to the accident. To what extent he was
This is not a case, as intimated by counsel for the de
Under the provisions of the federal Employers’ Liability
In Nadau v. White River L. Co. 76 Wis. 120, 131, 43 N. W. 1135, this court cites with approval what is said in Swoboda v. Ward, 40 Mich. 420, 424:
“Where the servant shows that the injury he received was in consequence of an increased risk, — one not ordinarily incident to the employment, — growing out of the master’s negligence, the burden of proof is upon the master to show that the servant knew of and understood the increased dangers.”
In Graber v. D., S. S. & A. R. Co. 159 Wis. 414, 150 N. W. 489, it is said:
“Assumption of the risk includes only such as the employee, expressly or impliedly, contracts to take upon himself because of being ordinary incidents of the particular business as ordinarily, carried on, or as carried on in the particular case to his knowledge or under such circumstances that reasonable attention to his situation would afford him such knowledge.”
There is involved in the question of assumption of risk not only the question of knowledge, but a reasonable opportunity to ascertain the nature of the risk and also an appreciation of the risk. There is no evidence in the case whatever showing that York, prior to boarding this platform, had any knowledge whatsoever of its dangerous condition; furthermore, there is no evidence in the case that he had an opportunity to determine for himself whether the platform, as a matter of fact, was in a dangerous condition. After assuming his position upon the platform he was engrossed
Defendant’s counsel rely largely upon Jacobs v. Southern R. Co. 241 U. S. 229, 36 Sup. Ct. 588; Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635; and Southern Pac. Co. v. Berkshire, 254 U. S. 415, 41 Sup. Ct. 162. In the Jacobs Case an employee of the company attempted to board a moving engine with a vessel of water in his hand and stumbled over a pile of cinders. The employee had knowledge of the cinders, but had momentarily .forgotten the existence of the same. In that case the court held that having admitted knowledge of the conditions he assumed the risk.
The Seaboard Air Line Case might have been cited to advantage by plaintiff’s counsel. It is there held that:
“Some employments are necessarily fraught with danger to the workman — danger that must be and is confronted in the line of his duty. Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily pru*122 dent person under the circumstances would have observed and appreciated them.”
To such decision we can find no criticism, and the law thus declared appears to be the recognized law upon the subject, generally.
In the Southern Pac. Co. Case it was held that the engineer who sustained injury had knowledge of the defects complained of, and it was therefore held that he assumed the risks as a matter of law. The other cases cited by defendant’s counsel are all readily distinguishable from the instant case. We are therefore constrained to hold that the question of plaintiff’s assumption of risk presented a proper jury issue, and, the answers of the jury being sustained by the evidence, the verdict in that behalf cannot be disturbed.
In the answer to the second question of the special verdict the jury found that defendant's negligence was the proximate cause of York’s death. Defendant’s counsel insist that the evidence does not sustain this answer of the jury in the special verdict; that the answer of the jury rests upon bare possibilities; and that in answering this question the jury entered the realm of conjecture and speculation. On this question the burden of proof was upon the plaintiff. Proximate cause may be shown both by direct and circumstantial evidence. There is no direct testimony of a witness in this case disclosing the exact manner in which the deceased came to his death. It does appear, however, that as York passed the Ludington street crossing he was seen by the crossing tender occupying the position above described, standing next to the brake-beam, with one hand thereon, and with the other hand offering a salute with his signal lantern. Immediately thereafter, as the car on which he was riding was approaching the west switch of the north passing track, where the conductor was stationed, he was found under the train, dead. The condition of the platform has been fully established and is undisputed in the evidence. True, there is a possibility of York having had a sudden
Under the view above expressed on the various issues presented, it will be unnecessary for us to consider plaintiff’s claim that'the defendant was also negligent in violating the federal Safety Appliance Act. This disposes of all of the contentions of defendant’s counsel, both in the brief and in the argument.
While the elements involved in the question of assumption of risk were substantially included in the questions submitted by the court in the special verdict, we would suggest the propriety of framing the question in accordance with the one requested by defendant’s counsel, viz.: “Would an ordinarily prudent person with York’s experience in riding cinder cars, under all the circumstances existing at the time, have observed and appreciated the danger to himself in riding in the position which he had assumed on the end of the car?”
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on June 3, 1924.