Yerkes v. N. Pac. Ry. Co.

• Decision Date: 29 November 1901
• Citation: 112 Wis. 184,88 N.W. 33
• Parties: YERKES v. NORTHERN PAC. RY. CO.
• Court: Wisconsin Supreme Court

112 Wis. 184

88 N.W. 33

YERKES

v.NORTHERN PAC. RY. CO.

Supreme Court of Wisconsin.

Nov. 29, 1901.

Appeal from circuit court, Bayfield county; James K. Parrish, Judge.

Action by C. M. Yerkes against the Northern Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Plaintiff, an experienced railroad man, was employed by the defendant as a night yard foreman, at a salary of $80 per month; his duty being, by use of a certain switch engine and its crew and a helper, to make up trains and move cars about in the yard of the defendant at Mandan, S. D. The switch engine, while so operated by him, met with an accident whereby the footboard at the back end of it, on which it was necessary for plaintiff and his assistant to ride in doing their work, was bent downward at the outer edge, at one corner, some 2 1/2 or 3 inches from its proper level. After continuing work with the engine for some two days, plaintiff, in the course of his business, by way of notice to his immediate superior, entered upon a book the fact that this was unsafe, and needed repair. At the same yard was the roundhouse foreman, who was independent in employment both of the plaintiff and of his immediate superior, the yard master, but whose duties, amongst others, were to keep the appliances, especially the switch engines, in repair. In the forenoon, after the giving of the notice as aforesaid, both the yard master, plaintiff's immediate superior, and himself called the attention of the roundhouse foreman to the necessity of repairing the defect in the engine. He remarked that it did not look very bad, whereupon the plaintiff stated that it was unsafe, and that he wanted it fixed at once; whereupon he said, “We will fix it as soon as we can.” On coming to work that evening the plaintiff noticed that the engine had not been repaired, and said to his superior, the yard master, “There is that engine; it hasn't been fixed;” to which the yard master replied, “Work with it to-night, Charley, and I will see that it is fixed to-morrow.” That night, while in the course of his duty attempting to alight from this footboard, he slipped, as he testified, by reason of the slant in the board, and suffered severe injuries, amongst others the loss of one leg below the knee. Plaintiff testified, under objection, that he would not have continued to work on the engine but for the promise of early repair. A verdict was found in favor of the plaintiff for $10,000, upon which, after a motion to set aside and grant a new trial upon the ground, amongst others, that it was contrary to the evidence, judgment was entered for the plaintiff, from which the defendant appeals.Louis Hanitch and C. W. Bunn (L. T. Chamberlain, of counsel), for appellant.

A. M. Warden and Daly & Barnard (John Jind, of counsel), for respondent.

DODGE, J. (after stating the facts).

Two of appellant's contentions may well be considered together. The first is that there was no sufficient evidence of any protest or objection by the plaintiff against continuing to work with the defective locomotive to carry the question to the jury, and therefore a verdict should have been directed in defendant's favor. The other contention is that the instruction given to the jury on this subject was erroneous. The conditions under which an employé may knowingly continue to work with a defective and dangerous appliance, in reliance upon a promise to repair, have been many times stated, and ought not to be in serious doubt. Judge Cooley (Torts, p 559) states the rule: “If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless and until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume its risks.” In Stephenson v. Duncan, 73 Wis. 404, 407, 41 N. W. 337, 338, 9 Am. St. Rep. 806, 808, this court said: “Where the servant, having the right to abandon the service because it is dangerous, refrains from doing so, in consequence of assurances by the master that the danger shall be removed, such assurances remove all ground for holding that the servant, by continuing in the employment, engages to assume the risk.” In Erdman v. Steel Co., 95 Wis. 6, 12, 69 N. W. 993, 995, 60 Am. St. Rep. 66, 71, in dealing with an alleged continuance at work in reliance on a promise to remove the danger, we said: “At the threshold of this question there is the essential element of protest or objection to proceed with the work on account of the danger.” Other cases on the subject: Sweet v. Coal Co., 78 Wis. 127, 49 N. W. 182, 9 L. R. A. 861;Maitland v. Paper Co., 97 Wis. 476, 484, 72 N. W. 1124, 65 Am. St. Rep. 137;Jensen v. Sawmill Co., 98 Wis. 73, 73 N. W. 434;Curran v. A. H. Stange Co., 98 Wis. 598, 74 N. W. 377. From these cases it is apparent that the assumed willingness of an employé to continue work with the appliances supplied him, at his own risk, must be negatived, and it must be made apparent that the master or those representing him understand he is not so willing. Further, such unwillingness, brought to the knowledge of the master, may and must be overcome temporarily by a promise to remove the danger within a reasonable time. Appellant's counsel seems to contend in his brief, though not so obviously in oral argument, that there must be a direct threat to quit work unless the repairs be made. This is not essential. Indeed, there may be cases where not even a spoken word from the employé is necessary, if it is apparent that the master or those representing him understand that a state of unwillingness and objection exists, and that such unwillingness is overcome by the promise of repair. The very manner of making the promise may well indicate the understanding of the master that such unwillingness and mental protest does exist. That fact must appear, however; for it cannot be said that one refrains from abandoning service because of a promise, if it were not also true that but for that promise he would abandon it, and one cannot be said to continue in a perilous employment by reason of a promise if he were not otherwise unwilling so to do. Hence the rule tersely suggested in the Erdman Case is undoubted, that the master must be given to understand that the servant protests and objects against continued exposure to the danger. If, so understanding, he promises to remove it, the servant is justified in temporarily continuing the employment until such reasonable time has elapsed as to destroy his right to rely upon the promise to repair, except in certain cases of peculiarly great, imminent, and unavoidable danger, of which more hereinafter. The master meanwhile is responsible for such injuries as are proximately caused by the defect, without contributory negligence.

In this case the plaintiff first entered in a book a notification of the defect and need of repair, which book was an ordinary medium of communication between himself and his immediate superior. This act alone might, as counsel for appellant argues, be ambiguous. It might convey no intimation of plaintiff's unwillingness to expose himself to the peril of the defect, but merely an intention to perform a duty of notifying the master, in order that it might, for its own purposes, make repair. The further conversation between the plaintiff and the yard master, and also between the plaintiff and the yard master and the roundhouse foreman, is much more significant. It was addressed to the latter, to whom plaintiff had no right to give orders or directions. The roundhouse foreman remarked that the step in question was not very bad, to which Yerkes responded, evidently with considerable emphasis: “Well, it is bad enough, and I want it fixed; I consider it unsafe.” We think this language certainly capable of being understood by those representatives of the master as expressing a state of protest and objection against further exposure to this dangerous condition. The words, “I want it fixed,” “it is unsafe,” could hardly be attributed to anything but such state of mind. Plaintiff had no right to express a command or direction to either of the others. They and he well understood that the only alternative within his control was to quit if his wish were not complied with. To express such wish was idle, unless some result were to follow refusal, but his manner and words were evidently inconsistent with mere futility. We think they might well convey to his hearers a purpose to act for his own protection if they would not. That they were so understood by the representatives of the master is clearly shown by the interview of the evening, when the engine was again brought out from the roundhouse. Plaintiff then said to the yard master, “There is that damn footboard now, and it hasn't been fixed.” To...