Emberg v. Great Northern Railway Co.

TimliN, J. In tbis action by a switchman against bis employer for personal injuries sustained by collision with a switch stand, there were several charges of negligence in tbe complaint. Among them was one tendering an issue by averring tbe existence of a custom of placing switch stands farther from tbe railroad track than tbe switch stand upon which plaintiff was injured, which custom was known to defendant and which defendant negligently failed to observe. The jury by special verdict found the defendant guilty of want of ordinary care proximately contributing to produce plaintiff’s, injury by maintaining the switch stand with which plaintiff collided as it was maintained with reference to the railroad track. But the jury also found that it was customary for railroad companies having switch yards in that vicinity to locate switch stands for similar uses as close to the track as the switch stand in question. They also acquitted the plaintiff of contributory negligence. The learned circuit court changed the first answer of the jury so as to find that the defendant was not guilty of any want of ordinary care in’ maintaining the switch stand as it was, and allowed the other answers of the jury to stand and gave judgment for the defendant, dismissing the complaint It will not be necessary to notice any other assignment of [398] error except that relating to the instruction given with reference to the second question of the special verdict. This instruction was as follows: “This question of course does not inquire as to whether or not it was customary for the defendant and other railroad companies having switching yards in this vicinity to locate all switch stands of the kind and intended for similar uses as this one at the distance from the rail mentioned, but only as' to whether or not it was customary for such companies, in the ordinary course of their business, to locate some such switch stands at such distance from the rail.” This instruction apparently authorized the jury to answer •the second question in the affirmative in case they found that it was customary for some railroad companies having'switch yards in the vicinity to locate some such switch stands at the same distance from the nearest rail; that is to say, if' a railroad company had one thousand switch stands of the kind in question and two were located at this distance from the rail although the customary distance as to all others was much greater, the jury nevertheless should answer the question in the affirmative. When we reflect that the real inquiry was not with reference to exceptional cases, the erroneous character of this instruction becomes apparent. If an appliance or place of work is obviously dangerous, even a general custom will not absolve the master from liability. Nickels v. Manitowoc S. & D. D. Co. 153 Wis. 298, 303, 141 N. W. 269; ch. 485, Laws of 1911; secs. 2394 — 48, 2394 — 49, Stats. Much less would a few exceptional cases. ' It is true switch stands of a particular make or for some special purpose may be located nearer to the track than others, but that does not' authorize proving a custom or manner of construction by two or three instances out of a great number, if in the case under investigation and in these two or three instances the switch stand was so close to the track that a switchman boarding a moving car at night might, in the exercise of ordinary care, collide with the switch stand. We [399] think the second question of Jhe verdict was properly submitted to the jury because an issue on this point was tendered by the complaint, but that the instruction above quoted was erroneous and prejudicial, not because it' failed to include all switch stands of the kind 'and intended for similar uses as the switch stand in question, but because it permitted'or •required the jury to answer this second question in the affirmative if some railroad companies, in the ordinary course of their business, located some such switch stands — no matter how few so there were more than one — at this distance from the rail. Before taking up the trial of this case again it would be well for counsel to carefully read the decisions of the federal courts upon the scope and effect of the federal Employer’s Liability Act, which seems to be covered by the complaint and to have been disregarded on the trial. By the Court. — Judgment reversed, and cause remanded for a new trial.