Kelleher v. Milwaukee & Northern Railroad

WiNsnow, J. The trial seems to have been in all respects fair. No exceptions are urged either to the rulings upon testimony or to the instructions of the court. The facts are not in dispute, but the appellant urges: First, that there is no sufficient finding of defendant’s negligence; second, that the defendant was not negligent; third, that plaintiff assumed the risk, and was guilty of contributory negligence. The jury found that the shed was so close to the track as to render the place unnecessarily dangerous to employees in performing their duties. It is objected that the true test is not whether it was “ unnecessarily ” dangerous, but whether it was unreasonably dangerous. This contention cannot prevail. It is ’settled in this state that the duty of the company is to see that its tracks are not so obstructed as to render the duties of its employees unnecessarily hazardous. Dorsey v. Phillips & C. Const. Co. 42 Wis. 583; Bessex v. C. & N. W. R. Co. 45 Wis. 477. Must the court say that there was no negligence in maintaining the coal-shed where it was? In order to say this there must be no other reasonable inference warranted by the facts. The exact question, then, is whether the- only reasonable inference from the undisputed facts is that the proximity of the shed did not unnecessarily increase the danger to switchmen performing the duties required of the intestate. This question is abstract, rather than concrete. To answer it properly requires a consideration of all the duties required of the deceased as switchman at this place, not simply a consideration of the act which he was thén engaged in. It appears that it was the duty of the switchman to sig [589] nal the engineer. To do this (if he is upon the mail car) he must stand on the step of the platform. He cannot mount to the roof, nor can he go inside the car. He must necessarily lean out from the side of the car to some extent in order that his signals may be seen. It was also a switchman’s duty to jump from the car while in motion, and turn a switch a short distance south of the shed. Here were two duties, at least, which might require a switchman to project his body beyond the side of the car at or about this place. In view of these duties and the shortness of the space between the side of the car and the shed, can it be said as matter of law that but one reasonable inference can be drawn from the facts? We think not. The question was properly for the jury, and their verdict, in the absence of error, is conclusive. It was argued with great force that plaintiif’s intestate must be held guilty of contributory negligence. Undoubtedly, if he had without cause, in mere wantonness or sport, projected his body from the side of the car, he would have been guilty of contributory negligence. But this was not the case. He was riding on the steps of the car, where it was evidently his duty to be, preparatory to jumping off to throw a switch. While so riding, a stream of water drips upon him from the roof of the car. The natural impulse is to avoid such an involuntary shower-bath. He could not go in the car, because he must soon jump off. The steps on the other side were occupied by his brother switchman. In this situation he took the course which' is most natural; a course which nine men out of ten would probably have taken under like circumstances; a course which, under ordinary circumstances, would result in no harm. Looking at the' act now,, in view of the consequences, we can readily see that it was dangerous. But this is not the test. The test is, What would a man exercising ordinary prudence have done under like circumstances, and with like knowl [590] edge, at that time? If be would or might have done what the intestate did, then the act was not contributory negligence. This question was for the jury. It was properly submitted, and their answer must stand. We see no reason for disturbing the verdict of the jury as to the knowledge or means of knowledge possessed by deceased of the location of the shed and its distance from the track. 1 The damages do not seem to us excessive, in view of the circumstances of the parents. By the Court.— Judgment affirmed.