Naylor v. Chi. & Nw. Ry. Co.

• Citation: 11 N.W. 24,53 Wis. 661
• Court: Wisconsin Supreme Court
• Decision Date: 13 December 1881
• Parties: NAYLOR v. CHICAGO & NORTHWESTERN RY. CO.

53 Wis. 661

11 N.W. 24

NAYLOR

v.CHICAGO & NORTHWESTERN RY. CO.

Supreme Court of Wisconsin.

Filed December 13, 1881.

Appeal from circuit court, Sauk county.

The plaintiff was in the service of the defendant company, working, with many others, in a gravel-pit a short distance from Baraboo. His business was to shovel gravel and earth upon cars which were backed into the pit. He was so employed about three months in the summer and fall of 1879. In October or November of that year, while so at work, a bank of earth under which he was excavating fell upon him and seriously injured him. This action was brought to recover damages for such injury. The alleged grounds of action are that the defendant was negligent in putting the plaintiff at work in a dangerous place without apprising him of the danger, and in not using reasonable and proper precautions to remove the danger. The gravel train upon which the plaintiff was shoveling earth was in charge of one Brown, who also superintended the work. Brown directed the plaintiff where to work, and he worked there two or three hours, and until the bank fell. At the time it fell an excavation two or three feet deep had been dug under it, partly by the plaintiff. Several of the men at work in the gravel-pit regarded the place where plaintiff was at work as dangerous, and left or avoided it. Twenty or thirty minutes before the bank fell, Brown came along on the cars and said to the plaintiff and others: “Be careful, boys; it don't look safe.” The plaintiff heard this caution, but did not change his position, or, so far as appears, pay any attention to it.

The stratum of gravel from which the cars were being loaded was about five feet deep, and above that was a high bank of earth sloping from the pit. The ground was frozen a few inches in depth. The body of earth which fell was about the length of a car. It extended from the excavation upwards about ten feet, and was two or three feet thick. On the trial the court sustained objections to the following questions to witnesses propounded on behalf of the plaintiff: “How much labor would it have been to have gone up and pried that bank off? Was there anything in the character of that bank, or its surroundings, to prevent its being pried off? Is it, or is it not, the duty of the boss to keep the overhanging bank cut down so as not to be dangerous? What do you do when the bank is dug under so as to overhang? What do they do, in such cases, to protect the men?” Similar questions as to what course Brown's predecessor, one Nallett, pursued when the bank was in that condition, were also ruled out on objection. At the close of the plaintiff's testimony the court ordered judgment of nonsuit, which was duly entered. The plaintiff appeals from the judgment.

Barker & Barlow and J. W. Lusk, for appellant.

W. F. Vilas, for respondent.

LYON, J.

Undoubtedly the general rule of law is that the implied contract between master and servant requires the master to provide suitable means, appliances, and instrumentalities to enable the servant to do his work as safely as the necessary hazards of the employment will permit. It is well settled, however, that the master may conduct his business in his own way, although another method might be less hazardous; and the servant takes the risk of the more hazardous method as well if he knows the danger attending the business in the manner in which it is conducted. Hence, if a servant, knowing the hazard of his employment as the business is conducted, is injured while employed in such business, he cannot maintain an action against the master merely for such injury because he may be able to show that there was a safer mode in which the business might have been conducted, and that had it been conducted in that mode he would not have been injured. Many cases affirming these principles are cited in the brief of counsel for defendant. See, also, Ladd v. Railroad Co. 119 Mass. 412;Clark v. Railroad Co. (Minn.) 2 Am. & Eng. R. Cas. 240, and cases cited.

Cases apparently within this rule sometimes arise, which, by reason of some special circumstance peculiar to the case, are taken out of it and, are to be decided under the general rule first above stated; as, for example, the...