Pecard v. Menominee Riyer Sugar Co.

Montgomery, J. The defendant was engaged in the business of manufacturing sugar from sugar beets. On its premises was situated a beet shed into which were run railway tracks upon which loaded cars were taken in and the beets unloaded, and the testimony shows that as occasion required, the empty cars were taken out by the switch engine, or if the switch engine was not at hand, the cars were pushed out by the men employed in unloading beets. The plaintiff was employed by the defendant to engage in the work of unloading beets on the 16th day of October, 1906. He commenced work at about 1 o’clock on that day, his work consisting of shoveling beets from a loaded car into one of the bins. He again worked on the 17th, his work being likewise confined to unloading beets. He testified that during, this time the only cars that he saw moved were moved by the switch engine, and that he did not know anything as to the rules and regulations of the company in the management of its business or of its cars, or how the cars should be operated. On the morning of the 18th, he went to work at 7 o’clock. Shortly after that time he was called out by the foreman, whose duties included those of a yardmaster, and directed to throw the beets which had fallen over onto the track up into the shed. He was engaged in this business but a few [86] moments when he was called by the foreman, Mr. Morrow, — there being at the time two cars standing on the tracks at a considerable distance outside the shed, one of which was a dead car and the other of which was being propelled by the men pushing it towards the dead car,— and directed to open the coupling on the stationary car. Plaintiff crossed over the track and saw that the coupling was closed on the stationary car and on the approaching car was open, and he thought they were in fit condition to make a coupling. But he was again told to open the coupling. The. cars came together and bounded back, leaving a space of about four inches between them. Plaintiff then went in beside the dead car for the purpose of making the coupling. While he was thus occupied, other employes pushed from the direction of the shed against the dead car another car by hand, causing the dead car to move and come in contact with the other approaching car, caught plaintiff’s arm and so injured it as to necessitate amputation. The case was tried before a jury, and upon a charge which left them to determine whether the plaintiff was called outside the line of his employment without proper instruction as to the danger of the same, and second as to whether thé defendant was guilty of negligence in not having provided rules or regulations for the government of its business which should prevent such an occurrence as that in question, the jury found a verdict in favor of the plaintiff. The sole error assigned is that the court erred in refusing to instruct the jury to find a verdict for the defendant as requested by counsel for the defendant, and we are only concerned in determining whether there was a case to go to the jury on any theory within the pleadings. The evidence indicates that no rules or regulations were made to govern the conduct of the defendant’s employés in this business, or to provide any warning to workmen engaged at a point where the moving of these cars without warning would be likely to occasion injury. [87] It further shows that the plaintiff had no knowledge of the failure of the company to make such provision. The foreman testified, it is true, that there was not anyone who had authority to order the special car in question pushed out so as to bump into that car. But he also testified that he had— “ Given orders to McGowan to push some of the cars out to clean the tracks; that is the only order. That order did not refer to any particular car, or to any particular moment. That simply referred to clearing that track of empty cars for cleaning purposes. By that, I mean cleaning up the beets off the track.” We think it was a question for the jury as to whether the defendant was guilty of actionable wrong in failing to provide, under these circumstances, for some warning of the danger from the approaching car to be given to one occupying the position which this plaintiff did. It is not a case where a plaintiff, with full knowledge of the methods of the defendant, had assumed the risk. On the contrary, he was unfamiliar with those methods, and had no thought that an absence of any regulation on the subject would result in such reckless conduct as to push this car against the dead car at which he was lawfully stationed. The case is very similar in its facts to that of Polaski v. Pittsburgh Coal Dock Co. (Wis.), 114 N. W. 437. In that case it was necessary for certain workmen employed on the dock of the defendant to pass over and across a railroad track upon which it was the custom of the defendant to move cars by hand, which was usually done by attaching a hook to either the front or the rear of the car and propelling it in this way. The plaintiff had ■been ordered to cross the track to the opposite side of the dock, and, while crossing, was struck by a car propelled from the rear by one of the defendant’s workmen and injured. The evidence showed that no rule had been promulgated for governing defendant’s servants in the manner of running these cars, and the court said: [88] “Ina business conducted by many employés performing work independently of each other, and in which the work of one becomes periodically dangerous to another, it is the duty of the master to provide reasonable precautions against such danger, and amongst these is promulgating rules and regulations for the giving of warning to the persons likely to be endangered when such dangerous acts are about to be performed.” The case of Gavigan v. Railway Co., 110 Mich. 71, is distinguishable for the reason that it does not appear that there was any neglect of a duty to promulgate proper regulations governing the conduct of the business. It is contended that the plaintiff was guilty of contributory negligence in placing himself between these two cars. The answer to this is obvious. If there was any negligence on the part of the defendant at all, it was a negligence wholly disconnected with the act which the plaintiff was engaged in performing. For all that appears in this record, he could perform the duties which he undertook to do from between the cars where he placed himself with perfect safety except for the intervening and unexpected propulsion of this additional car against the dead car before which he was standing. It was not contributory negligence to fail to anticipate this. We think there was a case for the jury, and judgment will be affirmed. Grant, C. J., and Blair, Carpenter, and McAlvay, JJ., concurred.