Howland v. Milwaukee, Lake Shore & W. Ry. Co.

• Decision Date: 07 February 1882
• Parties: HOWLAND v. MILWAUKEE, LAKE SHORE & WESTERN RY. CO.
• Court: Wisconsin Supreme Court

54 Wis. 226

11 N.W. 529

HOWLAND

v.MILWAUKEE, LAKE SHORE & WESTERN RY. CO.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from circuit court, Milwaukee county.

Cottrill, Cary & Hanson, for appellant.

J. H. Opdale and Geo. B. Goodwin, for respondent.

ORTON, J.

A general demurrer to the complaint was overruled. The following appears to be a reasonable interpretation of the complaint, having reference to what is briefly expressed and clearly implied in its very imperfect statement of the facts: The defendant's train, with the conductor and others in charge of it, was at the time engaged in the business of clearing the railroad track from accumulations of snow upon it, and for that purpose the train was furnished with the usual appliances, including a snow-plow. The plaintiff, with several others, was employed to go upon and with the train to use shovels in assisting to remove snow from the track at a place or places near the village of Humboldt, where their services might be needed. It is not unreasonable to assume, from common experience and the usual conduct of such business, that the plaintiff and the other servants of the company employed to use the shovel were to perform such service in connection with the snowplow and other appliances on the train, and were to use their shovels in removing any snow banks from the track which could not be readily removed by the snow-plow; and, if the snow-plow could readily run through the bank, those employed were to remain on board the train until they should come to a place where their services with the shovel should be required. It may also be assumed that it could not always be ascertained beforehand whether any partic cular bank of snow could be readily or safely removed by the plow without a trial and an attempt to do so. There is no allegation in the complaint that there was anything in the appearance of the particular bank of snow where this accident happened to indicate beforehand that it would be dangerous to attempt to remove it in this way, although there is an averment that the “train was with great force, and in a grossly careless and negligent manner, forced into said large bank of snow, thereby causing the car * * * to be violently thrown over,” etc. When the first considerable bank was reached on this expedition the conductor, after commanding the plaintiff and the other shovelers to stay aboard of the train, caused the train to be drawn back quite a distance to get a good start and sufficient impetus, and then to be propelled into the bank with great force, in order to clear it from the track, but in doing so the car in which the plaintiff and the other shovelers were, and probably the forward end of the train also, were turned over, and the plaintiff greatly injured. From this complaint so construed, and we think this construction a reasonable one, the following inferences may be reasonably drawn, which constitute sufficient reasons in the law why the plaintiff is not entitled to recover: First, the plaintiff and the others employed to shovel snow, and the conductor and others in the charge and management of the train and snow-plow, were engaged in the same business of clearing off the snow which obstructed the railroad, and in such business they were co-employes and fellow-servants; second, the train, snow-plow, and shovels were the means and appliances to be used in this general business; third, the turning over the train in attempting to pass through a bank of snow with the snow-plow was one of the perils...