Cole v. Chi. & N. W. Ry. Co.

• Decision Date: 23 November 1886
• Citation: 67 Wis. 272,30 N.W. 600
• Parties: COLE v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

67 Wis. 272

30 N.W. 600

COLE

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

November 23, 1886.

Appeal from circuit court, Fond du Lac county.

Action for damages by employe against railroad company for personal injury. Demurrer to complaint overruled. Defendant appeals.Sutherland & Sutherland, for respondent, Cole.

Jenkins, Winkler & Smith, for appellant, Chicago & N. W. Ry. Co.

LYON, J.

This appeal is from an order overruling a general demurrer to the complaint. The action is for personal injuries alleged to have been caused by the negligence of the defendant company. The complaint alleges, inter alia,

that the plaintiff was in the service of the defendant, and was sent by competent authority to switch cars in a yard of the company; that, in doing so, it became his duty to couple a car to a locomotive engine; that the engineer employed to operate the locomotive was careless and unskillful, to defendant's knowledge; that such locomotive was so worn, broken, and decayed that it was unfit for use, which the company also well knew; and in consequence of the unskillfulness and carelessness of the engineer, who backed his locomotive when he should have moved it forward, and a specified defect in the locomotive, of which the plaintiff was ignorant, the plaintiff suffered the personal injuries of which he complains.

It seems to be conceded in the argument of counsel for the defendant that had the complaint averred the ignorance of the plaintiff of the character of the engineer, and the unfitness for use of the locomotive, a cause of action would have been stated therein; but, whether it is so conceded or not, the proposition is undoubtedly a correct one. Assuming, however, that the plaintiff's right of action depends upon his ignorance of those conditions, we think it is not incumbent on him to aver such ignorance, but rather it is for the defendant to aver and prove that he had knowledge thereof. This is the only proposition we determine on this appeal. We conclude that the complaint states a cause of action. Order affirmed.

NOTE.

MASTER AND SERVANT--DEFECTIVE MACHINERY--IGNORANCE OF SERVANT. An employe does not assume the risk of any dangers arising from unsafe or defective methods, surroundings, machinery, or other instrumentalities, unless he has, or may be presumed to have, knowledge or notice thereof. Clapp v. Minneapolis & St. L. Ry. Co., (Minn.) 29 N. W. Rep. 340;Smith v. Peninsular Car-works, (Mich.) 27 N. W. Rep. 662;Cook v....