Molovasilis v. Chicago, Milwaukee & St. Paul Railway Co.

The following opinion was filed January 9, 1922: Owen, J. Presumably the civil court rendered judgment in favor of the defendant because the answers of the jury to questions 5, 6, and 7 of the special verdict found facts which, as a matter of law, amounted to an assumption of the risk on the part of the plaintiff arising from the negligent management of the motor car by the operator thereof. It is not seriously contended that the answers made by the jury to these questions are not supported by the evidence. There is abundant evidence to the effect that the contact by the motor car with the handcar was made in the same manner on the morning in question that it had been usually and customarily made during the period of ten. days when plaintiff had been there employed. It is contended, however, on the part of appellant that the question whether plaintiff had assumed this risk was [656] not properly submitted to the jury. ■ His contention seems to be that the jury should have been asked the point-blank question whether plaintiff assumed the risk. It was held in Zarcone v. Payne, 176 Wis. 240, 186 N. W. 415, that where the negligent conduct of a co-employee is of such frequent occurrence as to charge persons Of reasonable care and prudence with knowledge that it is dangerous to work with him, and the co-employee, notwithstanding such knowledge, continues in the employment without protest, he assumes the risk arising from the negligent practices of his fellow-servant. Questions 5, 6, and 7 of the special verdict were very aptly framed to elicit the facts upon which the assumption of risk of the negligence of a co-employee arises as a matter of law. While the direct question as to whether-plaintiff assumed the risk arising from the negligent manner in which the operator -of the motor car made the contact with the handcar, submitted with proper instructions, might have satisfied the requirements and spirit of the statute providing for a special verdict, questions 5, 6, and 7 of the instant verdict call for a finding upon the existence of facts upon which the legal conclusion must rest, and is in perfect accord with the spirit and purpose of the special verdict. It was not only proper to submit questions 5, 6, and 7, but it is difficult to perceive how the form of the verdict could have been improved upon.. It was suggested on the oral argument that the defense of assumption of risk is not available in this case because the negligence was that of a vice-principal. While there is a difference between the negligence of a vice-principal and the negligence of a co-employee so far as the liability of a master to a servant for injuries resulting from such negligence is concerned, there is no difference so far as the assumption of the risk is concerned. An employee who remains at work, without protest, in the presence .of known hazards assumes the risks-arising from a continuance of [657] the employment whether the hazards arise from a defective machine, the persistent negligent conduct of a fellow-servant, or the negligent and hazardous manner in which the employer directs the work to be done. Here the plaintiff, knowing the negligent manner in which the motor car made the contact with the handcar, remained at work without protest. In doing so he assumed the risk arising from such negligent conduct just as though the risk had resulted from a defective machine or the persistent negligent conduct of a fellow-servant. By the Court, — Order affirmed. A motion for a rehearing was denied, with $25 costs, on March 6, 1923.