Pool v. Chi., Milwaukee & St. Paul Ry. Co.

• Decision Date: 13 December 1881
• Parties: POOL v. CHICAGO, MILWAUKEE & ST. PAUL RY. CO.
• Court: Wisconsin Supreme Court

53 Wis. 657

11 N.W. 15

POOL

v.CHICAGO, MILWAUKEE & ST. PAUL RY. CO.

Supreme Court of Wisconsin.

Filed December 13, 1881.

Appeal from circuit court, Sauk county.

J. W. Lusk, for respondent.

D. S. Wegg, for appellant.

COLE, C. J.

1. We think there was no error in overruling the demurrer to the complaint. The plaintiff was injured while being transported over the defendant's road from Portage City to Kilbourn City on a hand car. The able and ingenious counsel for the defendant says that the company is not a common carrier by hand car, and is not chargeable with the liability of a carrier by that mode of transit. The correctness of this proposition may be conceded as a general rule. But the complaint states that plaintiff at divers times had been employed by the defendant to assist in ferreting out thefts, where property had been stolen from its cars, and that he was requested by an authorized agent of the company to go from Portage City, where he resided, to Kilbourn City, for the purpose of aiding in discovering the thieves who had stolen property from its cars at the latter place; that upon going to the depot at Portage City the means provided by the company, or its agents, was a hand car, upon which he was directed to ride. This shows that this mode of transit was authorized by the company, and the company was certainly under obligation to use reasonable care to assure his safe carriage in that manner.

The company was bound to know whether the hand car was a suitable, proper, and reasonably safe means for transportation; and, further, it assumed the duty of seeing to it that the car should be used with due care by those entrusted with its management, even though the relation of common carrier and passenger did not exist between it and the plaintiff. This was a legal duty springing from the relation of master and servant. It is true, the plaintiff was in the employ of the company as a detective, but he could not know the risks and perils of this mode of carriage. It would be unreasonable to say he assumed them all by his employment. Certain perils and dangers he doubtless did assume, but they were those incident to the detection and arrest of criminals. That was the business in which he was engaged. Therefore, in transporting him from Portage City to Kilbourn City, the company was bound to provide proper means of conveyance, and see that they were used with due care, so as not to subject the plaintiff to unnecessary danger. The cases of Hoar v. Maine C. Ry. 70 Me. 65, where the deceased was fatally injured while riding on a hand car at the invitation of the foreman of the section, and Eaton v. Delaware, L. & W. Ry. 57 N. Y. 382, where the plaintiff was injured while riding on a coal train with the assent of the conductor, which counsel cited on this point, do not seem to have any direct application, in the view we have taken of the case.

2. But it is further insisted by the same counsel that no actionable negligence is stated. It is alleged that the hand car was run...