Abbot v. McCadden

WiNSLow, J. The railroad yard in which the 'accident occurred was within the limits of the city of Stevens Point, and was crossed by several streets. One of the elements of negligence which the jury found, and upon which the plaintiff below based her right to recover, was that the switch engine which ran over the intestate was being driven at a negligently high rate of speed, or considerably more than sis miles an hour, contrary to the terms of sec. 1809, R. S. Upon the trial the defense offered to prove that it was the universal custom in the yard, before and at the time of the accident, to run switch engines in doing the yard work much faster than six miles an hour, and that the deceased well knew it. This proof was objected to and the objection sustained, and this ruling presents the first question to be passed upon. It is said in support of the ruling that such a custom would be unlawful, and that proof of a constant violation of law cannot be available as a defense. This is undoubtedly true, and, were this the question presented here, we should probably have no difficulty in affirming the ruling below. But it was not the bare fact that engines habitually ran faster than six miles per hour which the defense offered to show; they offered to prove that the deceased well knew this fact. Now, while the custom of running switch enginés at an illegal or dangerous rate of speed is no defense, it is quite apparent that, if the deceased knew that the engines in the yard constantly, were operated at such a rate of speed, and chose without, objection to remain in his employment, it was entirely competent to prove the two facts, as bearing on the extent of the risk which the deceased voluntarily assumed. The defendants could not be relieved of responsibility by the single fact that they were in the habit of running their engines with reckless and unlawful speed, but the degree of care required of the intestate would be legitimately affected by the fact that deceased knew of the speed constantly used, — 566 — and chose to remain in his employment, and subject to the .danger, without objection. It is not proof of an illegal custom as a defense, but proof that an employee knew of the habitual use of his employer’s machinery in a particular and dangerous way, and remained in the service without objection. The custom does not affect the right of action, but the knowing acquiescence therein may do so. The evidence offered should have been received. The court charged the jury, on the subject of damages, that the damages “ must be the money value only to her cmd her children which the life of the deceased was worth to her cmd them on the day of his death.” The same idea is repeated in other parts of the charge. This was error. The fact that there are children left surviving, whose support will be thrown on the plaintiff, is proper to be shown in evidence and to be considered by the jury; but the damages recoverable are those which the widow has suffered, not those which the children have suffered. It follows from these views that there must be a new trial. By the Court.— Judgment of the circuit court reversed, and cause remanded for a new trial.