Polaski v. Pittsburgh Coal Dock Co.

Dodge, J. In a business conducted by many employees 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. Promer v. Milwaukee, L. S. & W. R. Co. 90 Wis. 215, 63 N. W. 90; Portance v. Lehigh Valley C. Co. 101 Wis. 574, 77 N. W. 875; Bain v. N. P. R. Co. 120 Wis. 412, 981 N. W. 241; 1 Labatt, Mast. & Serv. § 210. Other illustrative cases are Hartvig v. N. P. L. Co. 19 Oreg. 522, 25 Pac. 358; Inland S. Co. v. Smith, 39 Ind. App. 636, 75 [262] N. E. 852; Ford v. L. S. & M. S. R. Co. 124 N. Y. 493, 26 N. E. 1101; Dowd v. N. Y. O. & W. R. Co. 170 N. Y. 459, 63 N. E. 541. In some instances tlie danger is so obvious and imminent and the making of regulations so easy that their absence might be considered negligence as a matter of law. In other cases of more doubt it becomes a question for the jury whether the omission of them is a failure of that due care which the employer owes his employees to guard them from injury. In the present case we have no doubt that as cars were likely at any moment to1 be set in motion by some employees, and other employees, whose work was wholly independent except that it promoted the general operation of the dock, were likely at any moment to1 be upon the tracks engrossed with their work so that an injury to them from a silently moving car was within imminent probability, it might well be thought by reasonable men that the duty of ordinary care required that some precaution, either by warning or lookout, be exercised. It is also obvious that those precautions were entirely easy and feasible. A lookout might be stationed on the forward end of the car, a bell or other signal sounded or given, but more easy and natural still would have been the precaution that the gripman should uniformly attach the moving apparatus to the front end and thus be in a position where he could see the track ahead of him. The evidence tended to prove that absolutely no instructions or regulations requiring any precautions whatever had ever been promulgated, and such is the negligence charged by the complaint. We deem it clear that a jury might properly decide that such omission constituted a want of due care on the part of the employer, nor can we doubt that they might reach the conclusion that such negligence was the proximate cause of the injury to the plaintiff, who was in a place required by his duty and by the command of his superior. Hence we must conclude that a prima facie case of negligence and liability was made out. [263] It is claimed by the respondent that plaintiff assumed the risks of doing the business as it was ordinarily done. But there was evidence tending to establish that the plaintiff had no knowledge of the absence of a rule requiring warning; also that warnings were frequently given voluntarily by the gripman or others, and that never, within the observation of plaintiff, had a car been set in motion without either the presence of the gripman before it or of a lookout on top or a shouted warning to men on the track. There can be no assumption of the risk from a negligent method of doing business of which plaintiff has no knowledge. Again, it is urged that plaintiff was guilty of specific acts of contributory negligence, in that he jumped onto the track immediately in front of the car. But there was evidence tending to prove that the car was stationary at that time, that the gripman was not in a position to be seen by him, and, since he had never known a car to be moved without some warning, that he had no reason to expect that this one would be. Upon such a state of facts, of course contributory negligence could not be predicated as matter of law; especially, too, when he had been given an order from his superior, who presumably knew whether there was peril, to enter upon and hasten across the track. We are convinced that the case should have gone to the iw- By the Gowrt. — Judgment reversed, and cause remanded for a new trial.