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

• Decision Date: 28 April 1885
• Citation: 63 Wis. 91,23 N.W. 136
• Parties: LUEBKE v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

63 Wis. 91

23 N.W. 136

LUEBKE

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

Supreme Court of Wisconsin.

Filed April 28, 1885.

Appeal from county court, Milwaukee county.

Chas. M. Bice, for respondent.

John W. Cary, D. S. Wegg, and Burton Hanson, for appellant.

LYON, J.

This case was here on a former appeal by the plaintiff from a judgment of nonsuit, and is reported in 59 Wis. 127;S. C. 17 N. W. REP. 870. That judgment was reversed by a divided court (CASSODAY and TAYLOR, JJ., dissenting) on the ground that it was the duty of the defendant company to provide a watchman to prevent any collision by other cars with that under which the plaintiff was at work, and there was no evidence whatever that the company had performed that duty. The cause has been again tried, and the plaintiff recovered a judgment, from which the defendant appeals.

The testimony on the two trials is substantially the same, except that on the last trial it was abundantly proved--indeed there is no evidence to the contrary--that while the plaintiff was under the car three train-men in the employ of the defendant were standing by the car, and that it was the duty of each of them, incident to his employment, to act as a watchman to protect the plaintiff from injury. True, no written or published regulation of the company to that effect was shown; neither did any witness in the employ of the company testify that he had been charged by any officer of the company with the duty of watching for the safety of other employes working under cars upon the tracks; but many such witnesses testified that their duty in that behalf was well understood by them and other employes of the company. It was a sort of common law of the company, obligatory upon its employes, and as thoroughly understood by them as though it had been embodied in the printed regulations and read by the officers of the company to them. It thus became a rule or custom of the company, as well as an understanding between its employes.

The jury found that it was not a rule or custom of the company, imposed by it upon its employes, that they should watch for the safety of their fellow-workmen in positions of danger. This finding is the basis of the judgment for the plaintiff, and yet, as we understand the evidence, it is entirely unsupported by the testimony. The undisputed evidence establishes a perfect defense to the action, and the court should have directed a verdict for the defendant, or at least should have granted the ...