Flanagan v. the Chicago & Northwestern Railway Co.

Lyok, J. The learned counsel on both sides have indulged in a wide range of argument, and have discussed questions which can properly be determined only on an appeal from a final judgment. On such an appeal we may review any intermediate order involving the merits and necessarily affecting the judgment (Laws of 1860, ch. 261, sec. 6), and hence may review an order overruling a demurrer to the complaint. Armstrong v. Gibson, 31 Wis., 61; Tronson v. Union Lumbering Co., 38 id., 202. But on an appeal from an order, the statute does not confer upon this court the power to review another order in the cause. On these appeals, therefore, we cannot review the order of the circuit court overruling the demurrer to the complaint. That court thereby determined that the complaint states a cause of action, and the order was not appealed. Hence, until an appeal is taken from a final judgment in the action, it is res acljudicata in this court that the complaint states facts constituting a cause of action. .The question to be determined, on these appeals is, Does the record show any sufficient grounds'for granting a new trial? The circuit court granted a new trial for the reasons (as stated in the bill of exceptions) that it erred in the instructions given to the jury, and also in refusing instructions asked on behalf of the defendant; and that the jerry evasively answered certain questions of fact submitted to them. If any of these alleged errors were committed on the trial in respect to any matter material to the issue, and to the injury or prejudice of the defendant, a new trial was properly granted. It is too clear for controversy, that it was not negligence on the part of the defendant to suffer the broken car to remain at the end of the spur track where it was broken, unrepaired, as [104] long as it chose. It is immaterial in this action whether it was suffered to remain there in that condition a day or a year. Negligence cannot he predicated of the delay, however protracted, to remove or repair it. It is equally clear that the defendant was not bound to repair the car before removing it from the spur track. It had the undoubted right to remove it to its yard or shop where such work is usually done, and there repair it. Neither was it necessarily negligence for the defendant to put it in a train with other cars in order to take it to the repair yard or shops. The jury were instructed, in substance, that if the defendant knew, or might have known had it exercised reasonable diligence, that the car was broken, in time to have repaired it before the plaintiff was injured, and moved it on its road in its broken condition, such delay and removal constituted negligence on its part; and further, that if the car was so broken as to render it dangerous for the brakemcn to go upon it, it was the duty of the defendant to repair it as soon as practicable after it had knowledge that the car was broken. The jury found specially that, under the circumstances, the defendant was guilty of negligence in that the broken car was attached to a train of cars and moved on the track, before it was repaired. These findings are supported by the instructions. Moreover, the learned circuit judge instructed the jury that “it was undoubtedly the duty of the defendant towards the plaintiff, while he was in their employ as one of their brakemen, to keep their cars in a suitable and safe condition, so that the plaintiff, while performing his duty as brakeman, could safely get on and off the cars.” This instruction is too broad. Oars and engines are frequently damaged, and it becomes necessary to remove them to some proper place for repairs; and it may happen that they are so seriously damaged that their removal will be attended with some personal danger to those engaged in the work. Tet that is one of the perils of the business; and if a person so employed is injured because'of the broken or unsafe condition of the car or engine, he has no remedy against the owner, unless such owner has been other [105] wise negligent. It maybe that the inaccuracy of this instruction is corrected in other portions of the charge; yet the judge may have thought, when he granted the new trial; that it might have misled the jury. The injury complained of was received in the state of Michigan in 1812, and the action is governed by the common law. There was considerable debate on the argument, as to whether the plaintiff and O’Brien were fellow-servants within the common-law rule which prohibits a recovery against a master for an injury received by a servant in the course of his employment, when the injury was caused by the negligence of a fellow-servant in the same employment. But this question, and many others discussed in the arguments of counsel, can be determined more satisfactorily on appeal from final judgment in the action, should such an appeal be taken. Some of the answers returned by the jury to questions submitted to them are evasive and insufficient. But we shall not stop to inquire whether the defendant could have been prejudiced thereby. That irregularity can easily be avoided on another trial. Sufficient has been said to show that a new trial was properly granted. Both of the orders appealed from must, therefore, be affirmed. Pursuant to a stipulation on file, signed by the respective counsel, no costs except actual disbursements will be taxed on the affirmance of the order denying the plaintiff’s motion for judgment. jBy the Gowrt. — Orders affirmed.