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

• Decision Date: 13 June 1916
• Citation: 163 Wis. 583,158 N.W. 321
• Court: Wisconsin Supreme Court
• Parties: SULLIVAN v. CHICAGO, M. & ST. P. RY. CO.

163 Wis. 583

158 N.W. 321

SULLIVAN

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

Supreme Court of Wisconsin.

June 13, 1916.

Syllabus by the Judge.

One who performs work in putting prospective subjects of interstate commerce in a state of preparedness for transportation is not engaged in interstate commerce within the meaning of the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]).

In case of an employé being injured or killed while engaged in the line of his duty as such, and recovery of damages therefor being sought on the ground of want of ordinary care of the employer, or his officer, agent, or servant, the defense of assumption of the risk is not available to such employer.

Under section 2394--48, St. 1915, it is the duty of an employer to furnish his employé employment and a working place as free from danger as the nature of his labor will reasonably permit, and when whether such duty was performed is material and there is room in the evidence for a finding either way, the question is for the jury.

Where an employé is injured while engaged in the line of his duty, and there are more than four employés working in the common employment, contributory negligence of such employé is not available as a defense against the claim of such employé for damages.

Where a servant of a railroad company, who is not a shop or office employé, is injured and that occurs or is contributed to by violation of such company of any statute enacted for the safety of employés, and an action is brought to recover damages for the injury, neither contributory negligence nor assumption of the risk is available to the company as a defense.

Appeal from a Judgment of the Circuit Court for Juneau County; James O'Neill, Circuit Judge. Reversed.

Action to recover for the death of plaintiff's intestate who was killed February 15, 1915, while performing his duties as an employee of defendant. The event was directly caused by a pile of lumber tipping over upon, and crushing, the deceased. The claim of plaintiff was that defendant was negligent in so permitting the lumber to be piled that it was liable to tip over and injure employees who were required to work in the vicinity thereof; that the manner in which the lumber was piled rendered the working place of employees who were so required not up to the statutory standard of safety and that such negligence was the proximate cause of the accident, or contributed thereto, in greater degree than any fault of deceased.

The claim of defendant was that the lumber was piled so as to be reasonably safe as regards tipping over and injuring any one; that deceased was engaged in interstate commerce at the time he was injured, and that he was perfectly familiar with the danger, if there were any reasonably to be apprehended, of the lumber pile tipping over, and assumed the risk thereof.

The evidence established this: Defendant was a railroad corporation engaged in interstate and intrastate commerce. For several years deceased had been one of its gang foremen, working in its railroad yard at Tomah, Wisconsin, under the yard foreman and other superiors. As part of the yard equipment there was a lumber shed, planing mill, and shops used for fitting up repair and construction material for the road. A stock of lumber was customarily kept on hand in the lumber shed. As it came in on cars or otherwise, it was piled in the shed in a manner directed by the superior of deceased. Sometimes, but not customarily, he took part in so placing lumber. The stock was drawn on from time to time as required to ship to points within and without the state. When so drawn on, it was taken to the planing mill or shops and fitted up as needed and then placed on cars for shipment. The lumber was piled in the shed in a number of panels on the north, and a number on the south, side of the eighty feet long shed so as to leave a wide alley through the center and narrow alleys between the panels. The piles were built up in tiers without any cross pieces between the boards, thus leaving each outside tier entirely independent of the others. The piles varied in height from about eight feet down. There was one pile made up of several tiers eight feet high and six feet wide. East of it there was a pile of three tiers about eighteen inches high, and east of that a pile about four feet high, leaving between the two high piles a space about forty inches. The most easterly tier of boards was lower than other parts of the low pile between the two high piles. On the day of the accident, there was a requisition for a bill of lumber of specified kinds to be gotten from the shed, fitted up as required by work thereon in the planing mill and then shipped to Western Avenue, Chicago, and added to the stock of material there for use as needed. The deceased, under direction of the assistant foreman, took the requisition and, with his crew, went to the lumber shed to select the required pieces. His superior accompanied him. After working some time, he, with the assistant foreman, came to the place where the accident occurred. He stepped on the most easterly tier of boards, which was lower than the pile between the two high piles, and stood there checking over the requisition with reference to further requirements. While so doing the assistant foreman took several boards from the tiers between the two high piles and pushed them to assistants outside of the shed to be taken to the mill. He then laid hold of a board, which proved to be fast at one end, or in some way, in the high or a nearby pile, at the side of deceased. The latter took hold of the board and lifted on it, when the pile west of him tipped over upon and crushed him. It was customary to use strips...