Hoth v. Peters

Cassoday, J. There is no allegation in the complaint of the exercise of ordinary care, or any care, by the plaintiff at the time and place of the injury. Eor aught that appears he knew the car in question was going to be started at the very time it was started. Ordinarily, in actions for negligence, the plaintiff need not allege nor prove that he was not himself negligent. In such case contributory negligence is generally a matter of defense. Randall v. N. W. Tel. Co., 54 — 410 — Wis., 147. Even where there is no evidence in the case except upon the part of the plaintiff, yet if there is any doubt about the plaintiff’s contributory negligence, the question should be left to the jury. Dorsey v. P. & C. Construction Co., 42 Wis., 583; Gower v. C., M. & St. P. Railway Co., 45 Wis., 182; Pitzner v. Shinnick, 39 Wis., 129; Cremer v. Portland, 36 Wis., 92; Barstow v. Berlin, 34 Wis., 357; Townley v. C., M. & St. P. Railway Co., 53 Wis., 626; Langhoff v. M. & P. du C. Railway Co., 19 Wis., 489. It is, however, well settled that where the plaintiff’s evidence clearly shows contributory negligence on his part, a nonsuit will be granted. Chamberlain v. M. & M. Railroad Co., 7 Wis., 425; Dressler v. Davis, 7 Wis., 527; M. & C. Railroad Co. v. Hunter, 11 Wis., 170; Achtenhagen v.Watertown, 18 Wis., 331; Delaney v. M. & St. P. Railway Co., 33 Wis., 72; Hoyt v. Hudson, 41 Wis., 105; Prideaux v. Mineral Point, 43 Wis., 524; Gumz v. C., St. P. & M. Railway Co., 52 Wis., 672; Kelley v. C., M. & St. P. Railway Co., 53 Wis., 74; Naylor v. C. & N. W. Railway Co., 53 Wis., 661. In Hoyt v. Hudson it was held that “if contributory negligence conclusively appears from the plaintiff’s own evidence, he will be nonsuited; while if the evidence merely tends to show such negligence the question avüI be for the jury.” In that case Mr. Justice Lyon observed: “If the burden of proving his own due care to avoid the injury is on the plaintiff, he must prove such care, either by direct evidence or by showing res gestae which exclude fault on his part, or he must fail in his action.” Page 108. “The meaning of the rule is that to render the defendant liable the injury must be the result of his negligence alone. Hence, to establish a cause of action, the plaintiff must show that the negligence of the defendant was the sole proximate cause of the injury; and to do this he must necessarily prove himself free from contributory fault.” Pages 109, 110. That decision seems to have settled a question upon which members of this court in — 411 — prior decisions had not, apparently, always agreed. But the decision of Hoyt v. Hudson, in this respect, was further explained by the late chief justice, in Prideaux v. Mineral Point, as follows: “It does not put the onusyyróbtmdi in all cases upon the defendant, as the learned judge appears to have stated. The rule intended in that case is that a plaintiff, giving evidence of the negligence of the defendant, and the resulting injury to himself, without showing any contributory negligence, is bound to go no further; he is not required to negative his own negligence. If, however, the plaintiff, in proving the injury, shows contributory negligence sufficient to defeat the action, he disproves his own case of injury by the negligence of the defendant alone. If the plaintiff’s evidence leave no doubt of the fact, his contributory negligence is taken as a matter of law to warrant a nonsuit. If the plaintiff’s evidence leave the fact in doubt, the evidence of contributory negligence on both sides should go to the jury.” Page 524. This explicit statement would seem to preclude any misapprehension as to the correct rule on questions of nonsuit. But here the question is presented on demurrer. The rule, however, would seem to be the same, unless the court is required by reason of the demurrer to construe the complaint most strongly against the plaintiff. The question was presented, but not decided, in Pool v. C., M. & St. P. Railway Co., 53 Wis., 660. "Whether such stringent rule should prevail or not, is unnecessary here to determine, since the complaint goes into details, and, in effect, alleges that after the plaintiff had assisted in piling the scantling, which were “ partly covered with snow, . . . and in a slippery condition,” upon the car in such a manner “ that a slight jar would cause the pile to fall down, unless the same was properly braced or shored up,” which was not done, he got into the car, and while stooping down between the piles, and in the act of counting the lower tiers, the pile fell down upon him and — 412 — caused the injury complained of. Such being the facts, and the facts being necessarily known to the plaintiff, it would seem to be pretty clearly established that he was guilty of contributory negligence in stooping down as he did between such piles so liable to fall from any “slight jar,” without even taking the precaution of first knowing whether such pile was likely to receive such slight jar or not. Having alleged what he did, the plaintiff should have gone still further and alleged, if he could, other facts showing that he was without fault at the time. Rut there is still another objection to this complaint. It was “ one of the yard foremen or superintendents ” who ordered or caused the car to be moved at the time, which is the negligence complained of. “ It has been settled as the law of this state that an action will not lie by a servant against his master for injuries received in the course of the service through the negligence of a fellow servant.” Anderson v. M. & St. P. Railway Co., 37 Wis., 321; Brabbits v. C. & N. W. Railway Co., 38 Wis., 289. See a review of the cases in 13 Cent. L. J., 406 et seq.; Day v. Railway, 42 Mich., 523. “ It is equally well settled that under certain circumstances the whole power and authority of the master are vested in an employee or servant, in which case the negligence of the employee is the negligence of the master.” Brabbits v. C. & N. W. Railway Co., 38 Wis., 289. The same rules "were followed in Flannagan v. C. & N. W. Railway Co., 50 Wis., 462, and Howland v. M., L. S. & W. Railway Co., 54 Wis., 226. There is no complaint here of defective machinery or track, so as to bring the case within the rules stated in Wedgwood v. C. & N. W. Railway Co., 41 Wis., 478; Schultz v. C., M. & St. P. Railway Co., 48 Wis., 375; Bessex v. C. & N. W. Railway Co., 45 Wis., 477; Baker v. A. V. Railroad Co., 20 Am. L. Reg., 724, and cases there cited. Nor is there any complaint that the foreman or superintendent was an unfit person to do the work for which he was employed, nor that — 413 — there vas any negligence in employing or retaining him, ■within the principle announced in Cooper v.M. & P. du C. Railway Co., 23 Wis., 668. But recovery is sought upon the sole ground that one of the several foremen or superintendents of the yard negligently directed the car to be started when he and the plaintiff both knew that the latter occupied a dangerous position on the car. We do not think the facts stated bring the case within the rule where the whole power and authority of the master are invested in the employee or servant who gives the order, as held in Brabbits v. C. & N. W. Railway Co. In a recent opinion of the Maryland court of appeals, after holding substantially the rule adopted by this court, it is said: “ Where a foreman is employed, the English cases, and a preponderance of the American, hold that he is a fellow servant, and the master is not liable for his negligence. To the general rule, however, there is this qualification, that where the superintendent is intrusted with the dischai-ge of the duties incumbent upon the master, as between the latter and the servant, there the master may be liable for the omissions or neglect of the superintendent in respect to those duties. If the master relinquishes all supervision of the work, and intrusts not only the supervision and direction of the work, but the selection and employment of laborers, and the procuring of materials, machinery, and other instrumentalities necessary for the service, to the judgment and discretion of a superintendent, in such case the latter becomes a vice-principal, and for his omissions or negligence in the discharge of those duties the principal will be liable.” State v. Malster, 57 Md.,. 287. Each of these propositions is supported by the citation of numerous English and American decisions. We are clearly of the opinion that the facts stated did not make the foreman in question a vice-principal of the defendants, within the established rule. The mere fact that they resided in Michigan, while the yard — 414 — was in Milwaukee, is not of sufficient importance to change the rule. By the Gourt.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.