Haring v. Great Northern Railway Co.

SiebecKER, J. Tbe appellant contends tbat tbe trial court erred in dismissing tbe complaint, in bolding tbat tbe evidence, as matter of law, showed tbat defendant was not negligent, and tbat plaintiff was chargeable with contributory negligence. It is urged tbat tbe defendant was negligent in not providing a sufficient working space between all parts of the car and tbe edge of the freight platform along tbe curve adjacent to tbe track. The proof is tbat the platform is so located tbat it provides only sufficient space between moving freight cars and tbe edge of tbe platform to prevent contact between them, and tbat it was not designed to provide a working space at tbis point. It is also shown tbat tbis is tbe common method of building such freight platforms. W© find nothing in tbe case calling for a different construction of tbis appliance for properly conducting tbis part of tbe railroad business. Appellant contends that tbe case of Dorsey v. Phillips & C. C. Co. 42 Wis. 583, and similar cases are in point to sbow tbat it was negligence not to leave a safe working space between tbe edge of tbe platform and the freight cars on tbe' adjacent tracks. These cases do not rule this one, because in [372] those eases the servant was expected to occupy the unsafe place in the performance of his duty, while in the instant case the servant was not required to perform his duties where he was injured. Its use as a platform for the purpose of loading and unloading freight was best served by locating it so as to have as small a space as possible between it and the cars on the adjacent tracks. It is not shown that the company was negligent in so constructing it. It is contended that the case of Hemmingsen v. C. & N. W. R. Co. 134 Wis. 412, 114 N. W. 785, is on all-fours with and rules this case. An examination of the facts of that case discloses that the platform was near the side-track at a manufacturing plant, used very rarely; that there was a space between the cars and the edge of the platform of from eleven inches to two feet or more; that the platform varied in height; that the side-track near it was not used much; that the brakeman in that case was engaged in giving signals for the movement of the engine and cars onto the track near the platform; that he took the position between the car and the platform to signal on the engineer’s side, without knowing how close the cars came to the platform, and that while standing in the open space between the car and the platform he was caught by a projecting handhold and injured. The court lays stress on defendant’s negligence and decedent’s contributory negligence, on the fact that the platform and track were rarely used by the railway company, that the decedent was ignorant of the danger of the situation in view of the opening between the cars and tire platform, and on the fact that the trial court in passing on these questions had resolved them in favor of the injured party. These features of the Hemmingsen Case distinguish it from the instant one in a number of material respects, in that the evidence showed negligence on the part of the defendant and that the plaintiff was free from contributory negligence, and in that the trial court in that case held that the evidence called for submission to the jury of the issues of negligence and contributory negligence. [373] Appellant claims tbat tbe position of the car on the curve of the track left an open space between the ends of the car and the edge of the platform, and that this would naturally invite employees to occupy this space and lead them to believe they were in a safe place, and that therefore such a construction rendered the appliance defective and unsafe. Nothing unusual or extraordinary results from a car passing over a curve in proximity to a platform. It is manifest that this was an appropriate way of constructing the car and platform. The fact that the ends of the car in passing over the curve would be farther away from the platform than the points between the ends is a natural condition which the deceased, as a reasonably intelligent person, must be presumed to know and note, and his omission to do so was an act of negligence. Tuttle v. D., G. H. & M. R. Co. 122 U. S. 189, 7 Sup. Ct. 1166. It is also urged that the defendant was negligent in not warning the deceased of the danger incident to the performance of his duty at the place in which he was working. This question and that of contributory negligence are inseparably connected under the facts of this case. It appears that the deceased was about twenty-one years of age; that he was fully of the average intelligence of men of that age; that he had several years’ experience in the. railroad business, and that he had observed the manner of conducting the freight-yard switching and handling of freight cars in proximity to this freight platform. It is shown that the danger complained. of was an open and obvious one to persons possessed of ordinary intelligence; that the business was conducted in the manner usual in railroad operation; that the deceased was not ordered or called on to take the position he assumed; that a safe and appropriate place on the side of the car opposite the platform was provided to perform his duties, and that he voluntarily chose this place of danger to perform his duty. Under these circumstances the danger cannot be held to be an abnormal or extraordinary one, but it is one common [374] to tbe conduct of the business and obvious to a man of ordinary intelligence, knowledge, and experience while in the exercise of ordinary care. Under these circumstances there was no duty to warn deceased of the peril complained of, and he was guilty of negligence in assuming this place of danger to perform his duty. The plaintiff contends that it was error, in the light of the provisions of ch. 254, Laws of 1907 (sec. 1816, Stats.), for the trial court to dismiss the complaint, upon the grounds that it appeared from the evidence, as matter of law, that the defendant was not negligent as charged, and that plaintiff’s intestate was guilty of contributory negligence. It is claimed that the case should have been submitted to the jury, because this act provides: “In all cases under this act the question of negligence and contributory negligence shall bo for the jury.” It is argued that this case is one of negligence and contributory negligence, that it is embraced in this act, and hence that those questions could only be determined by the jury. The effect of this provision of the act has been fully considered in the case of Kiley v. C., M. & St. P. R. Co. 138 Wis. -, 119 N. W. 309, and it requires no further discussion at this time. It is there determined that this provision of the act in no way affects the judicial power of the court to determine the legal sufficiency of the evidence tending to prove the fact of negligence and contributory negligence, and that no jury question can arise unless the court first determine that the evidence adduced legally tends to prove these facts. Since the trial court properly determined that there was no evidence tending to show negligence, there was no question of fact to be resolved by the jury. The court properly awarded judgment dismissing the com? plaint. By the Court. — Judgment affirmed..*