Wallin v. Eastern Railway Co.

LEWIS, J. The complaint in this action states, in substance: That the defendant is incorporated under the laws of the state of Wisconsin, owning and operating a line of railway between St. Paul, Minnesota, and West Superior, Wisconsin, and that about twenty-two miles of its tracks extend through the state of Wisconsin. That in the year 1899 defendant was engaged in repairing and reconstructing the wooden bridges and culverts on that division of its line extending from the city of West Superior to the village of Sandstone, Minnesota, for which purpose defendant employed a gang of about twelve men, comprising carpenters and helpers, designated as the “bridge gang.” That plaintiff was a carpenter by trade, and on May 12, 1899, was employed by defendant to work as a member of the bridge gang, to assist in the repairing and reconstructing of bridges and culverts on the Wisconsin side of defendant’s line of railway. That all members of such bridge gang were, at the time of their employment by defendant, located at West Superior. That such bridge-repair work was then and there carried on by defendant from West Superior as the starting point, and as a part of the contract of employment of the plaintiff, and in consideration of his agreement to perform such services, defendant undertook,, promised, and agreed with plaintiff to carry him over its line of railway every morning from West Superior to the places along its tracks where he would be required to work during the day, and every evening back again to West Superior, by means of regular trains to the nearest station, and from such point to the place of work by hand cars. It is further alleged: That on October 4, 1899, and during the whole of that day, such bridge gang, including plaintiff, were, in the course of their employment with defendant, engaged in repairing a certain bridge on defendant’s line of railway at a point in Wisconsin about eleven miles southwest of West Superior. That at about — 152 — 5.30 o’clock in the afternoon of that day, while so engaged in such employment, plaintiff, with the other members, of the bridge gang, was ordered by defendant to go upon one of defendant’s hand cars, so furnished, and to assist in propelling the same oyer defendant’s tracks and railroad line towards Saunders, for the purpose of enabling plaintiff and members of the bridge gang to take defendant’s passenger train back to West Superior. That, while plaintiff was engaged in his duty as such employee in propelling such hand car, defendant then and'there caused another hand car also to be propelled oyer such track by other servants of defendant, members of the same bridge gang, in close proximity to and immediately following the hand car propelled by plaintiff. The car in charge of the other members of the bridge gang was defective, in that one of the handles on the front end of the car, as it was then proceeding, was broken off, and the car was so carelessly and negligently handled by the parties in charge of it that, without fault on plaintiff’s part, and without any warning or notice, it ran into and collided with the preceding car, upon which plaintiff was riding, and by reason of the absence of the handle the preceding car was pushed off the track and derailed, thereby injuring plaintiff. It is then charged that defendant was guilty of negligence by its failure to provide reasonable rules and regulations to control the running of hand cars upon its tracks. The complaint then sets forth Laws (Wis.) 1893, c. 220; which provides that a railway company shall be liable for damages sustained within that state by any employee of such company, without contributory negligence on his part, when injuries are occasioned by any defective apparatus, etc., or while engaged in operating trains, and while engaged in the performance of his duty as such employee, which injuries shall have been caused by carelessness or negligence of any other employee. This complaint was demurred to upon the ground that it does not state facts sufficient to constitute a cause of action, and, the demurrer being overruled, defendant appeals. Defendant attacks the complaint upon three independent grounds: First, that plaintiff and his fellow workers were not, at the time of plaintiff’s injury, employees, engaged in their — 153 — duties as such, within the purpose and meaning of the Wisconsin act; second, that, under the circumstances alleged in the complaint, defendant was not required to furnish rules regulating the use and operation of hand cars; third, that the absence of one of the handles from the following car was not the proximate cause of plaintiff’s injury, and that the derailment of the car was not such a consequence, under the facts pleaded, as could or ought to have been foreseen by defendant as likely to follow the absence of the handle. 1. In support of the first proposition appellant relies upon the case of Benson v. Chicago, St. P., M. & O. Ry. Co., 78 Minn. 303, 80 N. W. 1050. In that cáse the railway company was engaged in repairing and resurfacing its track, and, for convenience, kept and maintained, on a side track near where the repairs were being made, a number of cars for the boarding and lodging of the men. When the necessities of the work required the men to be separated some distance from these cars, the railway company furnished hand cars for the convenience of the men, on which to transport themselves to and from their occupation; and, while plaintiff in that action was riding upon a hand car between the place of his employment and the boarding cars, another hand car, carrying other employees, engaged in similar work, overtook ancl collided with it, whereby the injury was occasioned. It was held that at the time of the injury the men in charge of the hand cars were not engaged in the discharge of their duties under their employment, within the meaning of the Wisconsin act. The decision rests upon the ground that defendant had no control over the men at that time, was not boarding them, had not undertaken to transport them to and from their work, and that the hand cars were furnished merely for the convenience of the employees, who were in no sense acting in the performance of their regular duties. The facts stated in the complaint we are now considering are entirely different. While there is an apparent lack of candor and fullness in the allegations of the complaint upon the question whether or not the wages of the men covered the entire time of their absence from West Superior, yet we think it must be inferred from the statements therein contained that the employment — 154 — for each day commenced at the time they left West Superior, and ended at the time of their return. It is stated that the men were employed at West Superior; that the work of repairing and reconstructing was conducted from that point; that, as a part of the consideration of their employment, the defendant agreed to transport them to and from the places of work by the means specified; and' that during the whole of the day of the occurrence of the injury they were engaged in the performance of their duties as such employees. We, therefore, consider the complaint sufficient in this respect, — that it shows with reasonable certainty that at the time of the injury not only respondent, but the other members of the bridge gang in charge of the other car, were employees of appellant, and engaged in the performance of their duties as such. 2. Conceding, then, that respondent and the other men in charge of the hand cars were employees of appellant, and as such engaged in the performance of their duties at the time of the injury, we now consider whether or not the company was required to have in force suitable rules and regulations to govern and control the operation of hand cars under such circumstances. It is well known that the operation of hand cars by men engaged in repairing a railway track is attended with considerable danger. Men frequently go in separate gangs on two cars to some point upon a railroad, and are obliged to run rapidly to avoid passing trains* and accidents are not infrequent as a result of collisions of hand cars thus operated; and it would seem that such business is of so dangerous and hazardous a character that ordinary men who are called upon to take charge of hand cars under such circumstances-should be guided by reasonable rules and regulations. In the case of Steffenson v. Chicago, M. & St. P. Ry. Co., 45 Minn. 855, 47 N. W. 1068, reference is made to the danger of operating hand cars; and in the case of Christianson v. Chicago, St. P., M. & O. Ry. Co., 67 Minn. 94, 69 N. W. 640, it appears that a rule of that company was in force which required hand cars to be kept apart for a distance of five hundred forty feet. It is true these men were not engaged in the same capacity as section men are, who remain constantly at work along the track for the purpose of repairing it, and are usually in charge of some manager or — 155 — section boss, but that fact would not lessen tbe duty of the master to impose rules and regulations for the operation of hand cars. It would, rather, tend to increase that duty; for there would be more necessity of reasonable regulations with respect to inexperienced men for such purposes than where a section crew is operating under the control of a manager. This requirement should not be regarded as a hardship upon a railway company, as it tends to the safety of the public as well as employees, and certainly inures to the protection of the company itself. Our conclusion is that, under such circumstances, it was negligence on the part of appellant to place its employees in charge of such defective car, and permit them to operate it in the manner stated, in the absence of reasonable rules and regulations for their guidance. 3. If the members of the bridge gang riding on the rear car were employees of defendant, and engaged in their duties as such, it follows, under the Wisconsin act, that appellant is responsible for the injury resulting by reason of the collision of the cars, provided such collision was caused by the negligence of those in control of the rear car, and without contributory negligence on respondent’s part. It is charged in the complaint that the injury was occasioned in that manner, and it, therefore, in that respect, states a cause of action. But the complaint also charges that the derailment of the first ear was occasioned by the absence of a handle which had been broken off from the second car, and we have to consider if in this respect a cause of action is stated. Conceding that the rear car was negligently operated, and that it might have so collided with the forward car as to cause its derailment, even though the handle were not broken off, yet it is possible that the car might have been so operated that derailment would not have occurred except for the absence of the handle. The act in question provides as follows: “When such injury is caused by any defect in any locomotive, engine, car, rail, track, machinery or appliance required by said company to be used by its employees in and about the business of such employment, when such defect could have been discovered — 156 — by such company by reasonable and proper care, tests or inspection, and proof of such defect shall be presumptive evidence of knowledge thereof on the part of such company.” As heretofore stated, the complaint sufficiently charges that the car in question was being used by employees of appellant in and about the business of their employment. It also appears that the defect is one that could have been discovered by reasonable and proper care or inspection; and the complaint alleges that appellant, under' its contract with respondent, was required to furnish him and the other men with hand cars for the purpose of conveying them between the stations where they were required to take a train to the places where they were at work. Assuming, therefore, that there was no negligence on the part of the employees in charge of the rear car which would have derailed the front one, had the handle been in place, was the absence of the handle the proximate cause of the injury? It will be noticed from the above-quoted section, that proof of defect in a car or appliance so furnished shall be presumptive evidence of knowledge on the part of the company that such defect existed. Objection is made to this portion of the complaint upon the ground that the missing handle was not the proximate cause of the injury, and that the derailment of the car, and resulting injury, was not such a consequence as could have been foreseen by appellant as likely to follow the absence of the handle. Handles are placed on hand cats for the purpose of lifting them off and on the track. In case it should become necessary hastily ■to remove a car from a track, the absence of a handle might be the cause of delay, and, hence, consequent injury; and, if an injury were occasioned under such circumstances, it might reasonably have been anticipated. Under the circumstances of this case, it may be conceded that it could not have been reasonably anticipated that the mere absence of a handle from a car would occasion the derailment of another with which it might happen to collide. But, after knowing how it happened, and being told it was occasioned because the handles were so situated that those on the rear would strike evenly upon a preceding car, and push it evenly, we can readily understand how, if one of the handles was — 157 — broken off, the other handle might, under such circumstances, tend to push the car to one side, and thus derail it. The question is, is it the proper rule of law that an injured person cannot recover, under such circumstances, unless the master, at the time cars were furnished to a servant and his co-laborers, reasonably could have anticipated that an injury was liable to happen in that particular manner? Or is this the proper rule: That the master would be liable if it reasonably could have been foreseen that injury in some form was likely to result, even though the precise nature of it could not be anticipated? In the case of Christianson v. Chicago, St. P., M. & O. Ry. Co., supra, the workmen in charge of a rear hand car were running at such rapid speed, contiguous to the preceding one, that they were unable to stop their car, and ran over a person who fell from the first car. In that case the question was raised as to what was the proximate cause of the injury; and it was contended that plaintiff therein could not recover, because under such circumstances such a result could not reasonably have been foreseen. In the opinion attention is called directly to the confusion in the use of the word “negligence” and the term “proximate cause,” and it is there stated that the correct rule is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated as likely to result in injury, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did occur. To the same effect the rule is stated in Hill v. Winsor, 118 Mass. 251. In discussing this question, 1 Shearman & Redfield, in their work on Negligence (5th Ed.) § 28, state that the weight of authority seems to be against holding a defendant liable for all actual consequences of his wrongful acts, when they are such that no human being, even with the fullest knowledge of the circumstances, would have considered likely to occur, and, again, that the best authorities seem to be quite opposed to the theory that a defendant should be held liable only for such consequences as he ought himself to have foreseen; and they lay down as a proper rule the following: — 158 — “A person guilty of negligence should be held responsible for all the consequences which a prudent and experienced person, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would at the time of the negligent act have thought reasonably possible to follow if they had occurred to his mind.” This statement somewhat extends the definition announced in the Christianson case, is more comprehensive, and probably as perfect as it is possible to formulate an abstract proposition upon the subject. Upon first impression, such a rule might not seem applicable to the facts in this case, but the safety of all persons engaged in so hazardous a business as railroading requires that the company be held strictly to account in regard to its cars, implements, and appliances. If the handle had been in place on this car, the preceding one might have been pushed along evenly, although forcibly, without damage; and, while appellant could not reasonably have anticipated that an accident would happen in the manner it did, it would occur to any reasoning person, after being put in possession of the facts, that such a result might follow. Other cases within this rule, substantially as stated in Christianson v. Chicago, St. P., M. & O. Ry. Co., supra, are Alabama v. Chapman, 80 Ala. 615, 2 South. 738; Ehrgott v. Mayor, 96 N. Y. 264; Western v. Bailey, 105 Ga. 100, 31 S. E. 547. Counsel for appellant cites the case of Weisel v. Eastern Ry. Co., 79 Minn. 245, 82 N. W. 576, in support of the rule of law which he contends should apply to this case. Special reference is made to a sentence quoted from the opinion in that case, as follows: “The defendant ought not to be required to anticipate that so unusual and peculiar a combination of circumstances would occur as to occasion so extraordinary and unexpected an accident.” It is claimed this language implies that this court has abandoned the doctrine announced in Christianson v. Chicago, St. P., M. & O. Ry. Co., supra, and intends to adhere to the rule that the defendant in such case can be held liable only when it appears that the manner in which the injury took place could reasonably have been anticipated. The sentence quoted must be read in connection with what follows, and with regard to the facts in that — 159 — case. The decision is based upon the ground that the original piling of the coal in the manner stated was not in itself a negligent act, hence it followed that such fact was not the proximate cause of the injury, and upon the further ground that, if the lump of coal causing the injury was displaced by the act of plaintiff’s co-servant, then, under the prior decisions of this court, the plaintiff could hot recover, for the reason that such servants were not engaged in the operation of. the railroad, and were not exposed to the peculiar dangers attending that business. Order affirmed.