Landry v. Great Northern Railway Co.

ViNje, J. Tbe argument of tbe defendant railway company, as we understand it, may be summarized as follows: Tbe whole complaint shows conclusively, first, that it was tbe duty of tbe defendant Webster Manufacturing Company to beep tbe track clear; that it bad sole dominion over tbe same, placed tbe obstruction thereon, and failed to notify tbe railway company of its being there; second, that plaintiff himself acted as lookout and that it was bis duty to discover the obstruction, hence bis failure to do so constituted greater negligence than that of tbe other members of tbe crew, thus barring recovery; and third, that, properly construed, tbe complaint taken as a whole charges only a failure of duty to inspect tbe track before switching thereon, and that no such duty devolved upon tbe defendant. Tbe argument occupies considerable space and is 'amplified and repeated in various forms, but tbe foregoing statement is deemed to include tbe real points relied upon. It is true tbe complaint alleges that tbe Webster Manufacturing Company bad control of tbe track; that it negligently placed tbe obstruction thereon, and negligently ordered tbe railway company to switch tbe cars out without notifying it of tbe obstruction. So far tbe complaint aptly charges tbe Webster Manufacturing Company with negligence. Then it proceeds to allege that tbe defendant railway company knew, or in tbe exercise of ordinary care could have known, of tbe condition of said switching track and of tbe obstruction thereon and planks across tbe same prior to tbe time plaintiff was injured, and that it negligently failed to notify and warn [385] plaintiff of tbe existence of the obstruction. We construe this allegation to be sufficiently broad and specific to admit proof of, first, actual knowledge by the defendant railway company, before the injury, of the obstruction and failure to warn plaintiff thereof; and second, knowledge of such facts and circumstances as ought in the exercise of ordinary care to have enabled it to discover the same and warn plaintiff thereof before he was injured. Proof of either would show a duty resting upon defendant railway company to warn plaintiff of the danger. The fact that such danger was created by the negligent act of the defendant Webster Mmva-fadurmg Company would not affect the duty of the railway company to warn its employee against a danger incident to his employment known to it but not to him. One person may be negligent in creating a danger; another, having knowledge thereof, may be negligent in failing to warn his servant who is ignorant of the same and whose safety in the discharge of his duties is affected thereby. The negligence of the two may combine to constitute the proximate cause of the injury sustained by the servant as a result of such danger. The allegations of a good cause of action against the one in no way destroy the allegations of negligence against the other. The charge of negligence on the part of the engine crew in failing to discover the obstruction and stop the engine before coming in contact with the planks is claimed to be neutralized by the allegation that plaintiff stood on the front foot-board. It is alleged that the crew in the exercise of ordinary care should have discovered the obstruction and stopped the engine before striking the planks and that the plaintiff was in the exercise of ordinary care and free from contributory negligence. In view of such allegations in the complaint we cannot say that plaintiff acted as lookout from the mere fact that he stood on the front foot-board. Eor aught we know, that may have merely been a convenient place for him to stand for the time being and it may still [386] have been the duty of the engineer or some one else to act as lookout. It is a matter of common knowledge that in working about switch yards the switchmen ride in various places upon the engine. Here plaintiff rode upon the front foot-board, whether for the purpose of acting as lookout or for other purposes we know not. The evidence will disclose what the fact was. If he was not a lookout, then we cannot say as a matter of law that his negligence was greater than that of the members of the crew who did act as such, and that his negligence contributed in a greater degree to produce his injury than did that of the actual lookout. So the allegations of the complaint upon this branch of the case may be sustained by proof that must send the case to the jury under the provisions of sec. 1816, Stats. If the complaint as to this defendant be construed as merely alleging a duty upon it to inspect switch tracks before switching thereon, and that by reason of such duty the defendant ought to have known of the obstruction upon the track, then confessedly it states no cause of action. No such duty to inspect a switch track before proceeding thereon with an engine devolves upon a railway company. It must exercise ordinary care in providing its employees with reasonably safe appliances, equipment, and roadbed. But such rule does not extend to the making of an inspection of a switch track before proceeding thereon with an engine in the ordinary course of the business, in the absence of any knowledge of any defect therein or obstruction thereon. As before indicated, however, we construe the complaint to charge both actual and constructive knowledge of the obstruction on the part of the railway company and a failure to warn plaintiff thereof. It also charges negligence on the part of the crew in failing to seasonably discover the planks and avoid the accident. The proof may sustain one or more or all of these allegations. Hence the demurrer as to the railway company was properly overruled. [387] Tbe defendant tbe Webster Manufacturing Company contends tbat plaintiff cannot maintain this action, first, because be was himself guilty of contributory negligence, and second, because tbe railway company and tbe engineer or some member of tbe crew were guilty of contributory negligence imputable to tbe plaintiff. Tbe argument tbat plaintiff was guilty of contributory negligence barring a recovery is based upon tbe allegation that be was riding on tbe front foot-board and so was located in tbe most advantageous position for discovering tbe obstruction, — tbat be was in fact acting as lookout and was negligent in not seeing tbe planks in time to avoid injury. What was said upon this point in discussing tbe demurrer of tbe railway company applies equally here. It is next urged tbat plaintiff was guilty of contributory negligence because be rode on tbe front foot-board, a place of obvious danger. Tbe complaint alleges tbat this was a customary place to ride. Indeed tbe evidence will probably disclose tbe fact tbat foot-boards are put on switching engines for tbe express purpose of riding upon by switchmen in the discharge of their duties. At any rate we cannot, in tbe face of tbe allegations of tbe complaint, say as a matter of law tbat it is negligence for a switchman to ride on the front foot' board of an engine engaging in switching. Tbe second contention is tbat tbe complaint shows tbe rail' way company and tbe engineer or some member of tbe switching crew were guilty of negligence which contributed to the injury. Tbat being so, such negligence is imputable to tbe plaintiff under tbe doctrine announced in Prideaux v. Mineral Point, 43 Wis. 513, and similar cases to tbe effect tbat tbe negligence of tbe driver of a private conveyance is imputable to tbe persons riding with him and defeats recovery. We must confess tbat we fail to see the application of this doctrine to the case at bar. Here was a switching crew engaged in a common employment, tbat of switching cars; they [388] were fellow-servants of one master engaged in tbe discharge of their several duties. The engine was not a private conveyance within the meaning of the rule in the Prideaux Case, nor was the plaintiff a passenger thereon. The engine was for the time being his place of work. He was there in the discharge of his duties as a servant of the railway company, not as a passenger of the engineer. It is also suggested that the plaintiff can claim no duty from the Webster Manufacturing Company on the premises in question except through the railway company. This suggestion is without force. Under the facts alleged in the complaint the Webster Manufacturing Company owed a duty direct to the members of the switching crew of which the plaintiff was one. It knew an engine and switching crew had to come in and switch out cars, and it knew that' the obstruction on the track was dangerous to the switchmen in so doing. It therefore violated a duty which it owed directly to the crew necessarily engaged in doing the work required to be done. A servant of one master who is required to do work upon the premises of another at his request may, in the absence of contributory negligence, maintain an action against the latter for negligence resulting in injury to him. And if both the master and the third person have been negligent they may be joined as defendants. By the Court. — Orders affirmed.