Writt v. Girard Lumber Co.

Pinxey, J, Upon the most favorable construction that, can be given to the evidence, this unfortunate plaintiff is Avithout any legal remedy for the serious injuries he has sustained. He knew that the defendant intended to and avouIcI, as it in fact did, operate its road while the building of the/ [499] piers upon ■which he was engaged progressed, and that he and his fellow employees were required to prepare and frame the necessary timbers on the track, and to clear the track of timber, etc., whenever the train gave a signal of its approach and was about to pass underneath the bridge. "Whatever risk of danger was ordinarily incident to the plaintiff’s employment arising from the manner in which the defendant operated and ran its trains, known to and understood by the plaintiff, must be deemed to have been assumed by him. The servant must take ordinary care to observe and ascertain whether any and what dangers are incident to his service,, and must be held to have ascertained and known of such dangers as ordinary care would have disclosed. It is not material to inquire whether the signal was seasonably given or not. He and his companions heard the train, cleared the track of tools and timber, and all stepped back for the loaded train, which was then about seventy or eighty feet away, to. pass. The plaintiff was then in a place of safety. The tie-that had been used as a skid had been loft on the track. The* engineer saw it beyond the men, and called for them to take it off. It was about twenty or thirty feet from the plaintiff, and he started for it, rushed up to it and within reach of the rapidly approaching train, running at the rate of eighteen or twenty miles an hour, and was struck by the engine, receiving the serious injuries of which he complains. He was not merely negligent, but his act was a rash and almost reckless one, and quite likely to result in serious'injury or death.. It is impossible to say, with any regard to the well-established rules of law, that his case should have been submitted to the jury. His injuries were the result of his own grossly careless and rash conduct. The authorities cited by the defendant’s counsel on the questions involved are clear and decisive. Doubtless the great peril of those upon the train in consequence of the presence' of the tie on the track, and the call. [500] •of the engineer to take it off, prompted the plaintiff’s action; •but, in the presence of the manifest and imminent danger to which he was summoned, he had no right to hear or obey the call of the master or any one acting for him. Self-preservation was his paramount and absolute duty, and because ¡he did not properly regard his personal safety, and rashly •exposed himself to great and imminent peril, he assumed to ¡himself the risk of the consequences, and is without remedy. Dougherty v. West Superior I. & S. Co. 88 Wis. 343; Sho-walter v. Fairbanks, M. & co. 88 Wis. 376; Luebke v. Berlin, Machine Works, 88 Wis. 448. The circuit court properly •directed a verdict for the defendant. By the Gowrt.— The judgment of the' circuit. court is af•firmed.