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

• Decision Date: 10 January 1888
• Citation: 36 N.W. 591,70 Wis. 420
• Court: Wisconsin Supreme Court
• Parties: EWALD v. CHICAGO & N. W. RY. CO.

70 Wis. 420

36 N.W. 591

EWALD

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

Supreme Court of Wisconsin.

January 10, 1888.

Dissenting opinion. For majority opinion, see 36 N.W. 12.TAYLOR, J., ( dissenting.)

This is an action to recover damages for a personal injury to the plaintiff alleged to have been inflicted by the defendant company by carelessly and negligently running their cars upon him while he was crossing one of their railroad tracks in the switch-yards of the defendant on his way to his place of work. The complaint was demurred to by the company on the ground that it does not state grounds constituting a cause of action. The demurrer was sustained upon the ground that the plaintiff was an employe of the defendant, and that his injury was caused by the negligence of another co-employe of defendant, and not by the negligence of the company. On the part of the counsel for the appellant it is urged that the plaintiff, being employed as an engine-wiper, to work solely in the round-house upon engines brought into such round-house, he ought not to be considered a co-employe with those whose duty it is to attend to the making up and switching trains and cars in the yards of the defendant. And as a second reason why the complaint should be held to state a cause of action, the learned counsel for the appellant insist that the facts stated in the complaint show that, at the time the injury was committed, the plaintiff was not in the actual employ of the company. The substance of the allegations of the complaint on this point is that the plaintiff was employed to work in the round-house at wiping engines; that his employment commenced in the evening and continued during the night until the morning; that when he was injured, he was on his way to commence work, but had not yet arrived at the round-house, and, while so on his way, and before he had reached his place of work, and before the time for commencing his work had arrived, he was injured by the negligence and carelessness of the defendant, its servants and agents.

While I am not disposed to dissent from the opinion of the court that the plaintiff was a co-employe with those in charge of the train which caused the injury, when engaged in his daily work, I am not prepared to say that the plaintiff was in the employ of the defendant when the accident happened. It appears to me that the man who works by the day or month for another, boarding himself, and having a stated time each day within which he must perform his work, cannot be considered in the employment of his master so as to bring him within the rule that he assumes the risks of the negligence of his co-employes, except when he is actually in his place of employment during the time he is required to do his work, or, if absent from his place of work, during that time in the business of his employer, or for his own pleasure or necessities. When his day's work is done, and he leaves the place of his work, until he returns to the place of his work again the next day, he is not in such employment so as to be subject to the risks of the carelessness of his fellow-workmen. No court has, I think, held that the laborer assumes the risk mentioned during all the time between the finishing of one day's work and the commencement of another day's work; but some courts have held that he must be considered in such employment when, either by the express or implied terms of his contract of his employment, his employer agrees to carry him to and from such place of employment, while he is being so carried to and from his work. Other courts hold that his employment commences only when he has reached his place of work, ready to commence his day's work, and that it ends when he leaves his place of work,--when his day's work is finished. I am inclined to agree with the courts, holding to the rule first stated as being founded upon the great weight of authority, but I am not inclined to extend the rule as limited in such cases, and when the servant has no contract with his employer to bring him to and return him from his place of work. I think his employment ends when his day's work is finished, and does not commence again until he reaches his place of work the next day. Why the laborer should be considered as taking any risks, as other employes of his master, on his way home from his work or on his way to his work, that he does not take after he arrives at his home and during the hours until it is again necessary for him to commence his work, when the employer does not carry him back and forth, can only be supported by the argument that, having agreed to be at his work at a certain hour each day, he necessarily agrees that he will leave his place of abode at the proper time, and proceed to his place of employment so as to be there in time to commence his work; and so, on leaving his work when his day's work is done, his employment renders its necessary that he shall go to his place of abode. In other words, his employment renders it necessary that he shall come to his place of employment and return therefrom to his home when his day's work is done; and so it may be said that the making of the two journeys is a part of his employment. No court has carried the rule to that extent, and I see no good reason for so extending it. I am of the opinion that the employer does not take into consideration the distance the employe has to travel to and from his place of labor, and regulate his pay in accordance with the distance traveled....