Schultz v. Chi. & N. W. Ry. Co.

• Decision Date: 11 January 1887
• Citation: 67 Wis. 616,31 N.W. 321
• Parties: SCHULTZ v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

67 Wis. 616

31 N.W. 321

SCHULTZ

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

January 11, 1887.

Appeal from circuit court, Juneau county.

Action for personal injuries. Judgment for defendant. Plaintiff appealed.Winsor & Winsor, for appellant.

Jenkins, Winkler, Fish & Smith, for respondent.

ORTON, J.

The plaintiff had been in the employment of the defendant company as track-walker from Elroy to Kendall, whose business it was to go over the track, and see that everything was in order, and, if anything was out of order, to fix it, or, if dangerous, to stop the trains. He had been thus employed about six months, but had been employed along this portion of the track, about other business of the company, about four years, and was well acquainted with the passing of the trains, and the management of things generally along that portion of the track. On the night of the twenty-second of April he started, about 6 o'clock in the evening, to walk his route or beat from Elroy to Kendall, and, when he had arrived near Kendall, he found a bolt out of place, and stopped to fix it; and, while so engaged, he saw the train coming out of Kendall, and he waited until it came about three lengths of a rail from him, and then he stepped off the embankment, and down towards the water of a mill-pond there, about six or seven feet. The track came within a little over three feet from the top of the embankment, and there the bank sloped down to the water, and it was level at the bottom a short distance from the water. While he was thus standing on the fireman's side of the engine, he looked into the engine as it passed, and saw the fireman doing something in the cab, and when the tender was passing him he saw a dark object fall or was thrown from it, and it struck him in the side, and injured him quite severely. He fell down, and was helpless, and was assisted to Kendall. He saw where he lay a piece of coal about the size of a man's soft hat, and it appeared that that was what hit him, and that probably fell from the tender. He saw that coal on the tender was above the top of it before the train reached him. He had seen pieces of coal lying along the track, and knew that coal sometimes fell from the tender. Kendall was the regular station for loading coal to last to Baraboo. In the course of his business, he had usually met about eight freight trains and three or four passenger trains per day on that part of the track. It was about 8 o'clock that evening when the accident occurred, and it was not very dark, but he had a lantern. He had before seen coal above the top of nearly every tender that passed on the road, but had never known coal to fall off in this way before. The same train usually passed him every day. The fireman usually loads at Kendall what he thinks is sufficient coal for the run. This is substantially all the testimony of the plaintiff, and other witnesses for him.

The plaintiff sought to prove what had been the customary way of loading coal, as to piling it up above the top of the tender, about that time, and for two or three years before. This was objected to, and the objection sustained. At the close of the plaintiff's testimony the circuit court granted a nonsuit in the case.

1. Was it error to reject the testimony offered as to the habit or custom of the company in respect to loading the coal, so as to be above the tender, or as to piling it up? It is not contended by the learned counsel of the appellant that such evidence was proper, for the purpose of showing negligence in this particular case; but it is contended that it was proper to show such general habit or custom for the purpose of showing notice to the company of such common and customary negligence, which ought to have been in some way corrected, and of showing that the company had affirmed, approved, and assumed the negligence of its employes in this respect, and made their negligence its own. In other words, that the company had assumed all the responsibility and liability for the risks of such negligence. For such purpose, this evidence would have reacted upon the plaintiff, to defeat his action; for the same evidence would have shown his own actual knowledge of such a common risk of his employment, and that he as well as the company had assumed them. If it was negligence in the company to have tacitly allowed the continuance of such a customary way of loading its cars, after presumptive notice of it, equally so, and more, was it negligence of the plaintiff to continue in such a dangerous employment after actual knowledge of it, and he certainly had superior means of knowledge. Hughes v. Railway Co., 27 Minn. 141;S. C. 6 N. W. Rep. 553;Railway Co. v. Sentmeyer, 92 Pa. St. 280; Naylor v. Railway Co., 53 Wis. 664;S. C. 11 N. W. Rep. 24;Hobbs v. Stauer, 62 Wis. 110; S. C. 22 N. W. Rep. 153;Ballou v. Railway Co., 54 Wis. 269;S. C. 11 N. W. Rep. 559;Leary v. Railway Co., 139 Mass. 584; S. C. 2 N. E. Rep. 115; Gibson v. Railway Co., 63 N. Y. 453.

The testimony of the plaintiff was that he had seen the tender overloaded (as claimed) in this way often before, and had stepped aside, and let the train pass, as in this instance, and that he had seen pieces of coal on the track within his route or beat, and that way of loading the tender was nearly always and invariably so. If there was in this way of loading any such risk or hazard or danger to be anticipated or apprehended in this employment, by continuing in it without complaint or objection, he assumed such risk and hazard; and he certainly could not recover if he happened, at some time, to be injured by such a customary mode of loading the tender with coal. First, then, by his own evidence, and by the above authorities, and the commonly accepted law upon that condition of the case, he ought not to recover, and the nonsuit was proper.

2. Was it negligence of the company, even if they knew of such a customary method of loading the tenders on their road? Such an accident had never happened before from such a cause. It was a very strange and almost unaccountable accident. It was common to load the tender in that way, and it may have been actually necessary in order to provide coal enough to last to the next coal station. Is it negligence to pile or heap up the coal above the dead level of the top of the tender? In this way coal had always been carried without any danger or accident. The plaintiff had never expected, feared, or apprehended any danger from it, or he would have been sure to have been out of the way when a train passed, or quit the employment of track-walker. Can this court say, in this case, as a matter of law, that this way of loading the tender was or is ipso facto negligent.

Negligence is a question of law, when the facts are undisputed, as in this case. It might make a radical change in the size and capacity of the tender, or in the distance between coal and wood stations, if the coal or wood must not be piled or heaped up above the level of the top of the tender. It would seem reasonable to put on the tender all the coal or wood it could safely carry, even above the top, and if by chance, or by the jarring of the car over a rough road, one single piece of coal or stick of wood should fall off, and injure an employe, who knows all about this usual way of loading the tender, and if he should notwithstanding place himself so near the side of the cars as to be injured by it, it would seem to be a mere mischance or accident, out of the common course of things, and against which the company, in the exercise of common care and prudence, or of such care as all other railway companies exercise in such a case, is not required to provide. The act of negligence complained of is the piling of the coal up above the top of the tender. We cannot and dare not say that this was negligence per se. The company provided safe machinery, and the cars were managed with care, and the road-bed was perfect, and no complaint is made of anything else, except that the coalheaver at the station, or the fireman, crowned or piled up the coal on the tender in the very way that this plaintiff had always observed, and that all tenders were loaded, and without a single accident from such cause before this. This case, in this respect, falls within the principle of a mere accident, occurring unexpectedly, and almost unaccountably, from a common course of things, in which it had never happened before, and is not likely to happen again, and is attributable to a cause not usually, and...