Flannagan v. C. & N. W. Ry.

• Decision Date: 01 January 1880
• Citation: 7 N.W. 337,50 Wis. 462
• Parties: FLANNAGAN v. C. & N. W. RY.
• Court: Wisconsin Supreme Court

50 Wis. 462

7 N.W. 337

FLANNAGAN

v.C. & N. W. RY.

Supreme Court of Wisconsin.

Filed November --, 1880.

Appeal from circuit court, Jefferson county.

E. P. Smith and G. T. Thorn, for appellant.

C. N. Felker and W. F. Vilas, for respondent.

COLE, C. J.

The learned circuit judge granted the nonsuit in this case on the ground that the undisputed testimony showed that the plaintiff was guilty of contributory negligence. In his opinion the learned circuit judge says it was proper to advert to the nature of the plaintiff's employment, and to consider whether it did not impose upon him more than ordinary diligence, or the diligence of an ordinary switchman, while performing his services. The learned judge states that it was quite apparent, by reason of the duties that were cast upon plaintiff by his employment, that he must have known it was more hazardous than the usual employment of a brakeman on the road; that he knew it was the custom in the yard to take all cars which had been used for bringing ore to Escanaba down to the repair shops for inspection; knew it frequently happened that cars which were out of repair were taken down there, together with cars which did not need repair, and that a knowledge of these facts imposed upon him more care than would have been incumbent upon him under other circumstances. Consequently the judge held that where the plaintiff sought to climb upon cars which he was thus engaged in handling, and which were liable to be out of repair, he was bound to realize that fact and not attempt to step upon the jaw brace without looking to see where he was placing his foot, and not taking it for granted that the brace was there in its place because braces were usually on the cars. There is certainly very great force in this view of the case, but we are disposed to affirm the judgment for the reason that there was no sufficient evidence of negligence on the part of the company to carry the case to the jury.

When this case was here on a former appeal (45 Wis. 98) it was decided that no negligence on the part of the company could be predicated upon the delay in removing the broken car from the end of the spur track, where it was broken. It was also decided that the law did not impose upon the defendant the duty of repairing the car upon the track where it was broken, but that it had the clear right to remove it to its repair yard, where such work was usually attended to. These propositions would seem to be so well founded in reason and common sense as to need no illustration or argument to support them; for a moment's reflection must satisfy my mind that it would be practically impossible for a railroad company to repair its broken cars along the line of its road where they might happen to be wrecked. Machinery appliances, together with skilled workmen, are generally needed to make repairs; and hence there is a necessity for removing broken cars to shops or yards where these can be secured. It is true, the testimony shows that the broken brace on this car might have been repaired on the track where it stood, but it appears the company had a rule or custom of sending all cars after they were unloaded of ore down to the repair shops for inspection. This would seem to be a reasonable way of doing business, and the custom was well known to the plaintiff.

But, says the learned counsel for the plaintiff, the law imposes upon the company the duty of furnishing safe and suitable machinery and appliances for the transaction of its business, and it has no right to increase the perils of the employment of its servants by a failure to perform that duty. But that proposition of law can have no application to the facts of this case; certainly not in the sense in which it is sought to apply it. No question is made but that the car in question was in good order, furnished with a suitable brace, when it was purchased by the company. But, in the hard, rough business in which it was used, of transporting, it was broken. It then had to be sent, with all other cars used in this business, to the usual place for repairs...