1 N.W. 112 (Wis. 1879), Steller v. Chicago & Northwestern Railway Co.

Citation:1 N.W. 112, 46 Wis. 497
Opinion Judge:Mr. Justice TAYLOR:
Attorney:For the appellant, there was a brief by Smith & Lamb, and oral argument by Mr. Lamb: J. W. Lusk, for the respondent:
Judge Panel:DAVID TAYLOR, J. EDWARD G. RYAN, C. J., no opinion.
Case Date:March 25, 1879
Court:Supreme Court of Wisconsin

Page 112

1 N.W. 112 (Wis. 1879)

46 Wis. 497




Supreme Court of Wisconsin

March 25, 1879

APPEAL from the Circuit Court for Sauk County.

Judgment reversed and the cause remanded a new trial.

For the appellant, there was a brief by Smith & Lamb, and oral argument by Mr. Lamb:

1. The constitution and laws of Illinois, in evidence, as construed by the courts of that state, showed that defendant could not refuse to run its trains to the ice-houses and haul out ice for the owners; that this piece of road was as to defendant a public highway, over which it was compelled by law to go with its engines and cars to haul property from the warehouses of the owners. 10 Ch. Leg. News, 372. The Wisconsin statute allows the railroad company to repair the road in such a case (R. S. 1878, sec. 1802); but the law of Illinois gave defendant no such authority. Possibly, if parts of the track had been wholly gone, or its condition had been such as to show clearly beforehand that it was unfit for use, defendant might not have been compelled to go on with its trains. But such was not the fact. Plaintiff, with the crew of a freight train and one hundred men to load trains, had been running back and forth for two full days, and discovered no defect in the road until the accident on the third day. There is no pretense that the road was not originally well-built and perfect in all respects. Defendant, therefore, had no right to refuse to put its trains on this piece of road. Those decisions which require railroad companies, when they own their roads, cars and appurtenances, to furnish them for their employees originally in good and sufficient condition for safe use, and to exercise due care afterwards in keeping them in repair, are clearly inapplicable to such a case as this. Defendant was not insurer of the safety of its employees (Saunders on Negligence, 120-128); and employees living and working in Illinois must be held to have known the constitution and laws of that state, and defendant's duty under them to run its trains on this road, and to have assumed the risks attending the business under those conditions. There is a class of cases where one party owns a railroad track or other property to be operated by machinery propelled by steam or other power, and the same is operated by another party, and where both parties have been held liable for injuries caused by some defect known to both. But the ground on which the liability of the party not owning but only operating the property is placed, is, that while the owners have neglected a duty, as for example in not fencing their railroad, the operator, with full knowledge of that patent neglect, has persistently used the road. P. & R. I. Railroad Co. v. Lane, 83 Ill., 448, and cases there cited. But the conclusion to which these cases irresistibly lead, is, that where the duty to keep a road in repair belongs to the owner, and the party operating it has no authority to repair it, and is lawfully required to use it, and it is not plainly unfit for use, and such party is operating it only temporarily, and is not shown to have any notice or knowledge of defects, the liability attaches only to the owner of the road, on whom the duty of repair primarily rests. See further, on this point, Mason v. Mayer, 49 Ga., 355; Parker v. Renssellaer & S. Railroad Co., 15 Barb., 316, 317; Whitney v. Clifford, ante, p. 138. 2. The act of plaintiff's coemployees in backing the train at the speed proved, had a direct tendency to cause the accident complained of. For such misconduct on their part defendant was not responsible, in the absence of any evidence that it was negligent in employing them or retaining them in its service. C. & A. Railroad Co. v. Rush, 84 Ill., 570; Cooper v. Railway Co., 23 Wis. 668; Priestly v. Fowler, 3 M. & W., 6; Saunders on Negligence, 120-128; Wood's Master & Servant, § 416, and cases there cited. The court therefore erred in refusing to instruct the jury that if they found such management of the train negligent, and that it caused or contributed to the injury, plaintiff could not recover. The rule that a master is not liable to a servant for negligence of a coemployee, is applicable even in cases where the machinery or apparatus may be defective, if the promoting cause of injury is the negligence of the co-servant. Allen v. New Gas Co., L. R., 1 Exch. Div., 251; Bartonshill Coal Co. v. Reid, 3 Macq., 266; Lovegrove v. Railway Co., 16 C. B., N. S., 692; Cotton v. Wood, 8 id. 568; Howells v. Landore Steel Co., L. R., 10 Q. B., 62.

Counsel also contended that the damages were excessive.

J. W. Lusk, for the respondent:

The general rule that a railroad company is liable for an injury to its servant caused by want of repair in the road, or by the defective character or condition of machinery or appliances about which the employee is directed to work, is not questioned by the defendant; but it seeks to establish an exception for which there is no authority. "A public company, like a canal or railway, who are allowed to take tolls, owe a duty to the public to remove all obstructions in the canal or upon the railway, although not caused by themselves or their servants, but by those who are lawfully in the use of the canal or railway, or by mere strangers." "Nor can a railway company excuse themselves from liability for injury to passengers carried over any part of their road, by showing that the particular neglect was that of a servant employed and paid by a connecting road." 1 Redfield on R. W., 602; McElroy v. Nashua & Lowell Railroad Corp., 4 Cush., 400; Railroad Co. v. Barron, 5 Wall., 90. A railway passenger carrier is responsible for the sufficiency of a carriage which it borrows and uses, to the same extent as for its own. Jetter v. N. Y. & H. Railroad Co., 2 Keyes, 154. In Murch v. Concord Railroad Corp., 9 Foster...

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