Collins v. Mineral Point & Northern Railway Co.

117 N.W. 1014, 136 Wis. 421, 1908 Wisc. LEXIS 243

• Court: Wisconsin Supreme Court
• Decided: October 20, 1908
• Status: Published

Opinions

Wnvsnow, O. T.

It appeared by the plaintiff’s own evidence that he had worked as brakeman or trainman in the employ of various railroad companies since boyhood, and was well acquainted with the ordinary methods of performing such work as well as with the ordinary dangers. Eor a considerable length of the time he was employed by the Chicago, Milwaukee & St. Paul Railway Company and was familiar with its printed rules, one of which, directed to all trainmen and switchmen, was as follows:

“(2) You are forbidden to work on the side of cars or trains where there are buildings, sheds, cattle chutes, or other projecting structures. Always work on that side where there are no buildings or structures, and in getting on or off or riding on the side of moving ears, do so only at places where there are no obstructions alongside the tracks, such as buildings, structures, lumber piles, etc., that will make such work hazardous.”

It further appeared without contradiction that the plaintiff was employed as conductor by the defendant company from January, 1905, when it first began to do business, up to the time of the accident; that the defendant company formally adopted the foregoing rule with other rules of the St. Paul Company at the very beginning of its active business, and gave notice to the plaintiff to that effect, and that the plaintiff fully understood that the rule was in force.

It will be noticed that the rule contains two separate and distinct clauses. The first is an-absolute command not to work on the side of cars where there: are projecting structures of any kind; the second is an affirmative direction to work on the side where there are no structures, and to get on or off or ride on the side of ears only where there are no obstructions alongside the tracks, such as buildings, structures, lumber piles, etc., “that will make such work hazardous.” Doubtless both clauses must be construed together, and the question is whether the rule so construed forbids trainmen from working or riding on the side of'trains, where there are any structures alongside the track, or only forbids them from so working when there are such structures as “will make such work hazardous” in the judgment of the particular employee who is doing the work. Unquestionably the latter construction would effectually emasculate the rule, and we cannot consider it a reasonable construction. The rule twice instructs the employee to work on the side where there are no structures, once by negative and once by affirmative language, and then proceeds to enumerate several things as being concrete examples of the kinds of obstructions which are covered by the inhibition and which make such work hazardous. The plaintiff so understood the rule, as appears affirmatively from his testimony, for he testified on cross-examination that it contained no exception allowing him to judge whether the building would clear him or not, and that, as the rules read, they forbade him to switch on that side. ,

With this construction there is no doubt from the evidence that the plaintiff knowingly disobeyed a rule intended for his protection and suffered his injury by reason of such disobedience. Under such circumstances he cannot recover unless he shows either that the rule is impracticable in the due discharge of duty, or that it has been waived or abrogated by habitual disobedience of the employees with the knowledge and tacit consent of the master, or for such a length of time that the master must be presumed to have become aware of such disobedience and acquiesced therein. Holmes v. So. Pac. Co. 120 Cal. 357, 52 Pac. 652; 5 Thomp. Comm. on Neg. § 5404, and cases cited. In the present case we find no evidence which would suffice to take to the jury the question of impracticability. It was shown that the switch stand was on the north side of the track, and that it was more convenient to do the signaling to the engine from the north side of the train, and thus that it would take somewhat longer to perform thé' switching operation if the conductor rode on the south side of the car, hut there was absolutely no evidence of impracticability, or that the plaintiff did not have ample time to perform the duty in hand in accordance with the provisions of the rule. As to habitual violation of the rule, almost all of the testimony on this point is to the effect that the employees of the Chicago, Milwaukee & St. Paul Eailway Company were in the habit of violating the rule. This custom, even if proven, could not, of course, affect the defendant. The habitual violation which will serve to abrogate the rule must be violation by the defendant’s own employees. We find no tangible evidence of any such habitual and open violation of the rule by defendant’s employees known to and acquiesced in by the defendant’s responsible officials, or existing for such a length of time as to raise a presumption of knowledge and acquiescence. A verdict should therefore have been directed for the defendant upon the evidence.

Some other errors are argued which may properly receive attention, as there must be a new trial of the case.

It is said, irrespective of the question of the rule, that the plaintiff assumed’the risk because he had frequently seen the ore bin and knew in a general way that it was located near the track. He had never, however, had occasion to examine its location closely or take a car from it, and it had been built only about two months, during about half of which time the plaintiff was off duty. We are unable to say that there was assumption of risk proven as matter of law.

Testimony was received against objection to the effect that there was ample room on the defendant’s grounds, so that the company could have placed the ore bin two or three feet further from tRe rail We see no good ground for tRe claim of error in this ruling. Renne v. U. S. L. Co. 107 Wis. 305, 83 N. W. 473.

A very large number of instructions were asked by tRe defendant and refused. WRile it is unnecessary to consider tRe question of tRe correctness of tRe rulings on tRese instructions, it may be proper to say tRat nearly all of tRem were instructions suitable only for a case submitted upon general verdict, and tkeir rejection would not be error in any event.

By ihe Court. — Judgment reversed, and action remanded for a new trial.