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Schultz v. Chicago and Northwestern Railroad Company. 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 employees in this respect, and made their negligence its own. In other words, that the company had assumed all the responsibility and liability for the risk 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. W. & St. P. R. Co. 27 Minn. 141; P. E C. R. Co. v. Sentmeyer, 92 Penn. St. 280; 8. C., 37 Am. Rep. 684; NayZor v. C. & N. W. R. Co., 53 Wis. 664: Hobbs v. Stauer, 62 Wis. 110; Ballou v. C. & N. W. R. Co., 54 Wis. 269; Leary v. B. & A. R. Co., 139 Mass. 584; Gibson v. Erie R. Co., 93 N. Y. 453; S. C., 20 Am. Rep. 552.

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.

Schultz v. Chicago and Northwestern Railroad Company.

2. Was it negligence of the company, even if they know of such il customary method of loading the tenders on their road? Sneh in 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 of accident. The plaintiff had never expected, feared, or apprehended any danger from it, or he would have been sure to be out of the way when a train passed, or guit 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 employee who knows all abont 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 aet 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 any thing else, except that the coal-heaver 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

Schultz v. Chicago and Northwestern Railroad Company. happened before and is not likely to happen again, and is attributable to a cause not usually and scarcely ever followed by such a consequence. The case in this respeet also falls within the decision of a similar class of cases of unexpected and unusual accidents where no recovery can be had, as in Morrison v. P. & C. Const. Co., 44 Wis. 405; Steffen v. C. & N. W. R. Co., 46 Wis. 259; and Sorenson v. Menasha P. & P. Co., 56 Wis. 338.

For this reason also we think that the nonsuit was properly granted.

3. We do not think that this way of loading the tender with coal, however common or invariable, was notice to the company of such act or neglect as one of danger, hazard or negligence, so as to make the company liable. For that purpose the company must be presumed to know that the act was one dangerous in itself, or from its dangerous consequences or from its liability to injure those persons who should stand near the track of the road. But this the company or anybody else did not know, and could not know until some such unusual accident as this had happened. The company might know that this was the usual method and way of loading the tender, and not be liable. It must also know that it is dangerous in itself to do so, or that it is liable to produce injury to others. But no one ever dreamed of such a consequence as happened to the plaintiff in this instance. In such knowledge as the company had, or was presumed to have had from its usual occurrence, there was no duty involved to discontinue such a way of loading the tender, and from it no liability for its neglect of duty could possibly arise, for the company did not know, and had no reason to know, that it was its duty to discontinue this practice, and did not know that it was unsafe. Aside from this knowledge of the company, the company had not assumed any liability for the acts of its servants, and from such knowledge as the company might be presumed to have had of the practice because it was common and invariable, we do not think the jury would have had any right to find that it had assumed this act or practice of its servants, that was never before found to be hazardous or dangerous.

This car was loaded in this manner by the coal-hcaver or fireman, as the co-employees of the plaintiff. Their grade of employnient was no higher than his. There was no proof that they so acted as the representatives or under the orders of the company. If there

Schultz v. Chicago and Northwestern Railroad Company.

was negligence in this particular case, it was the negligence of the plaintiff's fellow-servants and not of the company, and the plaintiff therefore was not entitled to recover, according to numerous similar cases in the court, which from their great number need not be specially cited. For this reason, also, the nonsuit was proper.

Many other cases might be cited applicable to this case; as wbere an employee remains in the business or employment after he obtains knowledge of its risks, he cannot recover for an injury arising therefrom. Kelley v. C., M. & St. P. R. Co., 53 Wis. 74; or as where an employee in a lumber yard is assisting in piling up lumber that is slippery and liable to fall, and that a slight jar would cause to fall upon him, and he is injured by the pile falling, he cannot recover. Hoth v. Peters, 55 Wis. 405.

[Minor point omitted.] BY THE COURT.-The judgment of the Circuit Court is affirnied.

Judgment affirmed.

INDEX.

ACTION
By State.] See CONSTITUTIONAL LAW, 590.

AGENCY.
Foreign agent-personal liability.) On a contract of affreightment, executed

by a foreign agent, but disclosing the fact of the agency and the name of
the principal, the agent is not personally liable. Maury v. Ranger (88

La. Ann. 485), 197.
See BANKS, 728; EVIDENCE, 562; NEGOTIABLE INSTRUMENT, 829; PARENT

AND CHILD, 875.

ALIENATION.
Restraint on.] See WILL, 692.

ANIMALS.
Property – dogs.] No action lies for negligently killing a dog. Jemison v.

Southwestern Railroad (75 Ga. 444), 476.

ASSIGNMENT,
Double, of chose in action — rights of assignees.] The bona fide purchaser

of a chose in action, with authority to collect, takes it subject to the claim
of one to whom the owner has previously assigned a part interest in it,
for a valid consideration. Fairbanks v. Sargent (104 N. Y. 108), 490.

Sce CONTRACT, 593; INSURANCE, 848.

ASSIGNMENT FOR CREDITORS.
1. Oondition for release--for return of surplus.] An assignment for creditors,

with preferences, providing (1) for the pro rata payment of the other cred.
itors in full satisfaction and release, and (2) for the return of any surplus
to the assignor, is void on both grounds. Greeley v. Dixon (21 Fla. 413).

673.
2. Void conditions.] An assignment for creditors is void for providing that

no creditor shall participate unless he accepts his share in full satisfaction,
and for not designating a time within which they are to come in, and for
providing that the trust shall be administered and closed under the super.
vision of the assenting creditors. Collier v. Davis (47 Ark. 367), 758.

See CONFLICT OF LAWS, 329.

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