Waszkiewicz v. Milwaukee Electric Railway & Light Co.

Ker.wiu, J. It appears from the evidence that on the day in question the plaintiff was in the employ of the defendant and had been for several years prior thereto; that on the 2d day of June, 1902, the time of the' injury, and for some time prior thereto, plaintiff was the custodian of tools and had charge of lamps or lanterns on the utility car used for the repair and maintenance of the defendant’s tracks. The [424] lanterns were carried on the car and put np at places where work was being done. On the morning of the accident plaintiff left the defendant’s utility yard on a utility car, which car was operated by a motorman who stood toward the front end of the car. The other member of the crew was a trolley boy who attended the trolley when the car passed around curves and over switches. The car made a trip to Wauwa-tosa, then to Sycamore and Third streets in the city of Milwaukee. There were six used rails, thirty ties, splices, bolts, spikes, two tool boxes, and lamps upon the car. The car came to a stop a few feet east of Third street. The plaintiff testified that after he got through cleaning the lamps he began throwing off ties, and while so doing the motorman moved the car, which caused his injury, and that no warning was given to him of the intention to move the car. Two main contentions are made by appellant: (1) That the use of the streets of the city of Milwaukee for the purpose of running cars over defendant’s tracks for carrying material for the repair and maintenance of defendant’s tracks and railway system was an unlawful use under sec. 5 of defendant’s franchise, heretofore quoted, therefore the defendant, being engaged in an unlawful use of the streets, was liable for any injury sustained by plaintiff, regardless of whether the relation of employer and employee existed; and (2) that even if the relation of employer and employee existed, the motorman was not a fellow-servant with the plaintiff, therefore the negligence of the motorman was the negligence of the defendant. 1. It is insisted under the first head that the relation of master and servant can be created only by contract, and since the use of the streets was unlawful upon the facts proved there was no valid contract, because the contract of employment between plaintiff and defendant was illegal, and hence the doctrine of fellow-servant could not apply; that, the act contracted to be done by the plaintiff being itself a wrong, [425] tbe master is not liable as sncb, but only as a joint tortfeasor, and not under tbe doctrine of master and servant. Daly v. Milwaukee E. R. & L. Co. 119 Wis. 398, 96 N. W. 832, is relied upon by appellant. Tbe case is not in point. In tbat case tbe freight cars were run solely for tbe carrying of freight and heavy material for compensation, or profit to tbe defendant. Tbe plaintiff at tbe time of tbe injury was lawfully using tbe street for travel and was injured by one of defendant’s freight cars while being run at a very high and dangerous rate of speed, and tbe plaintiff, while crossing tbe street and in tbe exercise of due care, was struck by such freight train and injured. Tbe case turns upon tbe proposition that tbe freight train was a nuisance in tbe street, and tbat a person lawfully using tbe street and sustaining an injury in consequence of such nuisance was entitled to recover. But no such case is before us. In tbe instant case there is no evidence tbat tbe defendant was unlawfully using tbe street in question. It was not hauling freight for compensation. It was carrying material and supplies for tbe use of tbe company in maintaining its railway system, and not acting as a common carrier of freight for hire. This, it seems clear, tbe defendant bad a right to do under its franchise, so long as it reasonably exercised tbe right. Caswell v. Boston E. R. Co. 190 Mass. 527, 77 N. E. 380. Tbe Massachusetts court in tbe case last cited bolds, under a provision similar to sec. 5 of defendant’s franchise, tbat while it might be unlawful for tbe railway company to use its tracks and cars in carrying freight for hire and be guilty of negligence for so doing, yet, because tbe construction, ■ maintenance, and management of a street railway involves tbe use at different times of many kinds of material at different places along its line, a street railway corporation has tbe same right as other persons to use tbe streets in a reasonable way in tbe transportation of anything which it is reasonably necessary to transport as incident to tbe proper management of its legiti [426] mate business. That if a reasonable way to bring material near tbe place where it is to be used, either for original construction or repair of the tracks, is upon cars propelled over the tracks, it is not unlawful to use the tracks for such purpose, and that such a corporation may carry along the tracks coal to supply power houses, if that is a reasonable way of doing business. The plaintiffs claim here is not based upon any injury because of obstruction to public travel or to his rights as a traveler or otherwise in the street. He was a member of the crew engaged in the work at the time of the injury, and, even though the car were unlawfully on the street and unlawfully operated, such fact in no way contributed to the injury of which the plaintiff complains, and gave him no right of action, and constitutes no breach of duty to the plaintiff upon the facts established by the evidence. 2. The defendant being lawfully upon the street and the contract of employment being valid, the relation of fellow-servant between plaintiff and the motorman existed. Naylor v. C. & N. W. R. Co. 53 Wis. 661, 11 N. W. 24; Howland v. M., L. S. & W. R. Co. 54 Wis. 226, 11 N. W. 529; Peschel v. C., M. & St. P. R. Co. 62 Wis. 338, 21 N. W. 269; Toner v. C., M. & St. P. R. Co. 69 Wis. 188, 31 N. W. 104, 33 N. W. 433; Schultz v. C. & N. W. R. Co. 67 Wis. 616, 31 N. W. 321; MacCarthy v. Whitcomb, 110 Wis. 113, 85 N. W. 707. It is also insisted by appellant that the defendant was negligent in failing to give notice of the starting of the car which it is alleged caused the injury, and that there is no evidence that the defendant instructed the motorman to give notice, or that the motorman was competent. The failure to give notice was the negligence of the motorman, who was the plaintiff’s fellow-servant. The case was tried upon the theory of unlawful use of the street by the defendant. There is neither allegation nor proof of negligence in failure to [427] make proper regulations, or as to incompetency of tbe motorman. Some other questions are discussed by counsel which we need not consider. We think it clear that the plaintiff made no case, and that the nonsuit was properly granted. By the Gourt. — Judgment is affirmed.