Luebke v. Chi., M. & St. P. Ry. Co.

• Citation: 59 Wis. 127,17 N.W. 870
• Parties: LUEBKE v. CHICAGO, M. & ST. P. RY. CO.
• Decision Date: 11 December 1883
• Court: United States State Supreme Court of Wisconsin

59 Wis. 127

17 N.W. 870

LUEBKE

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

Supreme Court of Wisconsin.

Filed December 11, 1883.

Appeal from circuit court, Milwaukee county.

CASSODAY and TAYLOR, JJ., dissenting.

Charles M. Bice, for appellant, William Luebke.

John W. Cary and Burton Hanson, for respondent, the Chicago, M. & St. P. Ry. Co.

ORTON, J.

The plaintiff had been employed by the company to work at repairing cars on two tracks called repair tracks, which were kept locked except when a car had been repaired on one of the tracks and it was unlocked and the car run out. On the day of the accident, while the plaintiff was at work on the regular repair tracks, he, with another, was ordered by the foreman to go a short distance upon a side track to repair a car standing there and detached. He did not know that they were to make up trains on this track, and apprehended no danger. While he was under the car making the necessary repairs, and where it was necessary for him to be for that purpose, an advancing train of cars struck this car under which the plaintiff was on his knees to repair, and pushed it over him and caused his injury. These are briefly the facts. There was no evidence that any watchman had been placed to guard this car so being repaired, or the plaintiff so repairing it, from danger from approaching cars on that side track. When it is considered that this kind of service upon the regular repair tracks was amply protected by locking up the tracks, (a most praiseworthy precaution against danger from the negligence of others,) the admission in the answer of the company to this action is candid and praiseworthy. The answer admits “that while cars are being repaired upon other than repair tracks, ordinary prudence, care, and the customs and regulations of the company, require that such work should not be done except while the car is being protected by watchmen or other suitable protection.” This admission of the answer sufficiently disposes of the claim, most unworthily made on the argument, that it was the duty of the repairer himself, who is compelled to go under the cars to repair them, to provide his own watchmen and look out for himself.

Before seeking to apply the well-known principles of law to such a case, it may be well to dispose of the position assumed by the learned counsel of the respondent, that this plaintiff took the chances and hazards of a most dangerous service. Is this so? When a car is standing still and disconnected from any power which could move it, and in a place where there was not the remotest reasonable suspicion or apprehension that it would be moved or at all disturbed, where is the danger? There would be nearly the same danger in degree, and the same in principle, if a person should go under a two-horse wagon in a farmer's yard, to repair it, without any apprehension that the farmer would hitch to it while he was so under it, and draw it over him. If the rule is to be established that any railway service is dangerous, because all employes are careless and negligent whose duty it is to guard him from injury, then there is no railway service which is not dangerous, and the employe takes his chances, not that the particular service or duty is dangerous in itself, but that it will be made so by the habitual negligence of everybody who might be able, by his negligence, to injure him. Under the effect of such a rule, even travelers and passengers take the chances of a most hazardous and dangerous method of travel, and cannot complain if they are injured by such negligence as is the normal characteristic of railway service.

There are some presumptions upon which any one connected with the railway service, either as employe or passenger, has a right to rely. They are (1) that the company has provided all necessary and proper means and appliances for their protection; and (2) that the employes themselves will do their duty in such responsible service. In this view, the business of repairing this car by the plaintiff, by going under it, which was necessary, was not dangerous service. The car would not move over him, unless moved by some other force applied by the gross negligence of some one else. The car standing still and disconnected was not dangerous any more than any other inert body, and it was perfectly safe to lie down under its wheels, if necessary, as it could do no harm. The danger of this service consisted in the outrageous carelessness of somebody else in the management of the trains on that track, which he was not only not bound to presume, but he had no right to presume or expect. No! the service was not dangerous in itself, like going between cars, when in motion, to couple or uncouple them, or to go upon cars when in motion to set the brakes, or other similar services, concerning which it has been held that the service is dangerous, and the employe takes the chances and hazards thereof. Here the company admit that it was their duty to have had a watchman on this ground to prevent this collision, or at least to have done what they reasonably should have done to prevent it. The circuit court granted a nonsuit in the case on the testimony in behalf of the plaintiff. There was no evidence whatever that the company had provided such a watchman. If the case had been fully tried the company might have proved that such an admitted and reasonable precaution had been taken. In such a state of the case, what is the presumption of the law as to this most important fact? If a watchman had been provided for that duty, the first presumption would be that he was on duty at the proper place; and if so, secondly, that he discharged that duty to prevent, if possible, the moving of the cars against the one under which the plaintiff was, so unconsciously of danger, at work, and the collision would not have occurred.

The conclusion from these presumptions is that the company did...