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

• Decision Date: 10 January 1888
• Citation: 70 Wis. 420,36 N.W. 12
• Court: Wisconsin Supreme Court
• Parties: EWALD v. CHICAGO & N. W. RY. CO.

70 Wis. 420

36 N.W. 12

EWALD

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

Supreme Court of Wisconsin.

January 10, 1888.

Appeal from Milwaukee county court; J. E. MANN, Judge.

This was an action brought by August Ewald against the Chicago & Northwestern Railway Company for injuries. The facts appear sufficiently in the opinion. On demurrer, judgment was rendered for defendant, and plaintiff appeals.

TAYLOR, J., dissenting.

Austin, Runkel & Austin, for appellant.

Jenkins, Winkler, Fish & Smith, for respondent.

ORTON, J.

The following portions of the complaint sufficiently raises the questions involved: “That this plaintiff was, at the time hereinafter mentioned, employed by said defendant as a laborer, and his duty was to attend to the wiping and cleaning of locomotives belonging to said defendant in the night-time, and after they were removed from the tracks, and into the roundhouse;” “that he had nothing whatever to do with the operation of said railroad, or any of its rolling stock, and was not employed in any capacity upon any of the trains of said company, but his employment was confined exclusively to cleaning engines after they were put into said roundhouse;” “that on the fifth day of February, 1886, at about six o'clock in the evening of that day, this plaintiff was proceeding, with due care and caution, through the yard of the defendant, to commence his night's work and labor in the roundhouse of said company; that he was walking in the usual and beaten path, that had been worn and used by himself and others employed in said roundhouse for a long time prior to said last-mentioned date, in going to and from his and their work; that, in order to reach said roundhouse, it was necessary for him to go upon said pathway, and to cross the track of said defendant company in its said yards; that as he approached said track, he noticed that it was occupied by a number of freight cars, and that said cars were uncoupled and separated, and a space left between said cars where the aforesaid beaten path crossed said railway track.” The complaint then substantially charges that the defendant well knew that such opening between the cars at said path was accustomed to be kept open for the use of its employes, going from and coming to said roundhouse, and that the plaintiff had long known of such custom; that as he approached said track he looked up and down, and listened, and saw no engine, and no person at the crossing having charge of said train, and heard no noise or signal or anything to indicate that the cars were to be moved, and that he thereupon stepped in between said cars on said pathway, and, before he could get across, the defendant negligently and carelessly caused said cars to be jammed together by one of its locomotives, without warning by bell or whistle, and the plaintiff's arm was caught between the bumpers to said cars, and he was draged by the movement of the train about 60 feet, and greatly injured. To this complaint the defendant interposed a general demurrer, that it stated no cause of action; and the demurrer was sustained, presumably upon the ground that the plaintiff's injury was caused by the negligence of his fellow-servants or co-employes.

It would seem that in the county court the only question was whether the plaintiff, as a wiper of engines in the roundhouse, was a fellow-servant of the engineer or conductor of the freight train, or those having charge of the same, so that he could not recover by reason of their negligence. But in this court the main question seemed to be that at the time of the injury the plaintiff was not an employe of the defendant, because not then actually employed in the service of the company, but was merely going to the roundhouse, the place of such employment or service. This question would seem to be foreclosed by the allegations of the complaint. It is alleged that at the time thereinafter mentioned, viz., at about 6 o'clock on the fifth day of February, 1886, the time when he was injured, the plaintiff was employed by the defendant as a laborer to attend to the wiping and cleaning of locomotives, etc. Then, again, the plaintiff bases his right to be on that pathway on the grounds of the company, and to pass safely through the opening of the cars thereon, and to have it kept open for him, solely upon the fact that he was at that time an employe of the company, with others who were accustomed to use the same, going from and returning to their work in the roundhouse. It is not alleged that the company owed the plaintiff any duty to keep open for him that pathway, or to look out for his safety thereon, except as he was an employe of the company, and in its service at the time. Otherwise, he was a stranger, intruder, and trespasser upon the grounds of the company, and the company was not charged with any duty towards him or such persons at that place. It follows that, if the company was charged with any liability to the plaintiff for the negligence of its servants and employes, it is because he was a co-employe of the company or fellow-servant with them. It is the gravamen of the complaint that, by custom having the force of contract, the company kept open, and was bound to keep open, that pathway between the cars for the use and convenience of the plaintiff and other employes of the company whose business it was to do the wiping and cleaning of the engines in that roundhouse of the company, in going away from or returning to their said work in the roundhouse. It is not charged in the complaint that, by custom or usage, that pathway was or was to be kept open for the public or strangers, by the company, as a public or private way, by dedication or consent, for their use or convenience. It was solely for the use of the plaintiff as an employe or servant, and for other employes or servants of the company whose duties were performed in that roundhouse. By the complaint, it was a means of egress or ingress from or to that roundhouse, provided by the company for the exclusive use of the plaintiff and his co-employes, as useful and essential to them, as a door or gateway to the roundhouse itself. From these facts the duty of the company to keep open this pathway for the plaintiff, and assure the safe use thereof to the plaintiff, is educed. The company, and those having charge of the train at the time, were aware of this custom, and had good reason to suppose that this pathway or opening was being used at the time by the plaintiff, and was left open for him on his way to the roundhouse, and hence their duty to look out for his safety therein. We therefore agree with the plaintiff that he was, at the time he was injured in that pathway, in the opening between the cars, in the employment of the company.

This might well end the case so far as the question whether he was then an employe of the company is concerned; and yet the learned counsel on both sides saw fit to discuss the question whether the plaintiff was really an employe at the time, and through courtesy we pass upon it as a question of law, although in some cases this question is made one of fact for the jury. The facts being admitted by the demurrer, it may as well be treated as a question of law. We will not enlarge the question, even to the extent the argument of the learned counsel seemed to carry it, but confine it strictly to this case on its facts. As to what may be the law when an employe of a railway company is not actually employed, or at any intervals of actual labor, or going to or from his labor his own way, and independently of the company, or under other circumstances, is immaterial to this case. The authorities may be in great conflict upon that question; but we are not aware that they are in conflict upon the question presented by the facts of this case. Here we have a private pathway over the grounds of the company, granted and allowed to the plaintiff and other employes of the company who worked in the round house, by usage, custom, and consent, for their ingress and egress to and from their work, kept open across the track of the road, and which had been worn and used by himself and others for a long time prior to the injury, and that in order to reach the roundhouse it was necessary for him to go upon said pathway, and to cross the track of the company at that place. It was the means, and only means, of entrance and exit to and from their work furnished by the company, and the plaintiff and others had a right to its free and uninterrupted use as they always had; and it was because they were the employes of the company in the roundhouse that they had such right and privilege. It was an essential part and ingredient of the plaintiff's contract of employment, and incidental to it, as much as any means and facilities for his labor in the roundhouse itself furnished by the company. The plaintiff, therefore, while enjoying such privilege and facility, or while passing along that pathway, and between the opening of the cars, was an employe and servant of the company, as much as while actually laboring for the company in the roundhouse, and as much within his contract of employment. On the other hand, there was, by virtue of the same contract, a corresponding duty of the company to keep that passage-way open for the plaintiff, for he had a right to be there as an employe of the company working in the roundhouse. If the company violated that duty, to the plaintiff's injury, by its own act or primary negligence, its liability to respond in damages is absolute and unquestionable; but, if the plaintiff has this benefit or advantage by reason of his relation to the company as an employe, he must also suffer the disadvantage, if it be such, of being remediless against the company, if his injury in that relation was caused by the negligence of his co-employes or fellow-servants. But this will be considered hereafter.

Our present concern is, was he, when injured, an employe of the company. The peculiar...