Casey v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 03 April 1895
• Citation: 62 N.W. 624,90 Wis. 113
• Court: Wisconsin Supreme Court
• Parties: CASEY v. CHICAGO, ST. P., M. & O. RY. CO.

90 Wis. 113

62 N.W. 624

CASEY

v.CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Wisconsin.

April 3, 1895.

Appeal from circuit court, St. Croix county; E. B. Bundy, Judge.

Action by John Casey, an infant, by his guardian, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff was a boy of 18 years, and weighed 175 pounds. He had lived all his life upon a farm, and was accustomed to work. He had been to school, and had a fair common-school education, and was of fully ordinary intelligence. He was employed by the defendant to load dirt and loose stones upon flat cars. The dirt was removed from the top of a rock cut. It was carried in wheelbarrows along and over a timber 8 inches by 10 inches, to the car. It was a plain timber, without guards of any kind. It bridged a space of about 20 feet, from the end of the car to the top of the cut, and was 10 to 12 feet above the roadbed. The wheelbarrow which the plaintiff used was an old one, whose axle did not run true. Plaintiff selected it from a pile of wheelbarrows, for this use. He helped to repair it, and knew its infirmity. He testified that he was told to be careful not to run off; that he knew, if he lost his balance and the wheelbarrow run off, he was liable to fall down. He knew, if the wheelbarrow run off, he would have to jump, or he would fall off. He knew all about that. That was plain to be seen. He worked at this work 2 1/2 days. The wheel ran off the timber; he lost his balance, fell, and was injured. At the close of the testimony the defendant requested the court to direct a verdict for the defendant, which was refused. There was a verdict and judgment for the plaintiff, from which the defendant appeals.Thomas Wilson, for appellant.

N. H. Hayden and H. B. Walmsley, for respondent.

NEWMAN, J. (after stating the facts).

This seems, clearly, to be a case where the plaintiff assumed the risk of an obvious danger. The danger was entirely open and apparent to ordinary apprehension. There was nothing occult about it. It required no high degree of intelligence or extensive experience to appreciate it. The plaintiff, though an infant in years, was a boy of at least average intelligence and experience. He could not fail to know that by natural law a hurt is the consequence of a fall. Nor could he fail to discern and appreciate the danger of the employment in which he was engaged. Nothing happened which he did not foresee as likely to happen if the wheelbarrow ran off the timber. He knew the defect of the wheelbarrow, and its liability to run off. There was no element of the danger which a bright boy of 18 could fail to apprehend. It was not needful that he be warned of dangers which were obvious, and which he understood. No warning could make them more palpable to him. Of all such dangers he assumed the risk, by his contract of employment. Luebke v. Machine Works, 88 Wis. 442, 60 N. W. 711. “The law in such case is stated by the supreme court of Massachusetts in the following language: ‘When the employé assents to occupy the place prepared for him, and incur the dangers to which he will be exposed there by, having sufficient intelligence and knowledge to enable him to comprehend, then it is not a question whether such place might, with reasonable care and by reasonable expense, have been made safe. His assent has dispensed with the performance on part of the master to make it so. Having consented to serve in the way and manner in which the business was being conducted, he has no ground of complaint, even if reasonable precautions have been neglected.’ Sullivan v. Manufacturing Co., 113 Mass. 396. And by the same court, in a later case, as follows: ‘Every corporation has the right to carry on a business which is dangerous, either in itself or in the manner of...