Crane v. Chicago, Milwaukee & St. Paul Railway Co.

67 N.W. 1132, 93 Wis. 487, 1896 Wisc. LEXIS 97

• Court: Wisconsin Supreme Court
• Decided: June 19, 1896
• Status: Published

Opinion

PiNNEY, J.

1. The leading facts upon which the decision in this case must turn are substantially undisputed, although as to minor and subordinate facts there are some discrepancies in the evidence. It is shown beyond dispute that there was, and had been for a long time, a uniform and well-settled usage and course of conduct on the road of the defendant company in respect to the relative duties of the engineer and fireman when either went under the engine for any purpose connected with his duty, and that by such usage and course of conduct, founded upon considerations essential to their personal safety in the performance of their respective duties, each was to notify tbe other of the fact when he was going under the engine. The plaintiff and the engineer, Hart, as well as other like employees of the ■defendant company, fully understood what this established usage and course of conduct required, and each regulated, and had a right to regulate, his conduct aócordingly. It became “ a sort of common law of the company, obligatory upon its employees, and as thoroughly understood by them as though it had been embodied in the printed regulations and read to them by the officers of the company.” Luebke v. C., M. & St. P. R. Co. 63 Wis. 92.

The evidence is undisputed that the engineer had never known the plaintiff, during the thirty-three days they had .served together, to go under the engine before without notifying -him; and while the plaintiff testified, in substance, that if the engineer was not present he would go under — be willing to go under, as we understand him — without looking up the engineer, relying upon the engineer to-look out before he made a discharge of water, he did not testify that he had ever gone under the engine under such ■circumstances; on the contrary, he testified that he always ■did tell the engineer, and the engineer always told him when he (the engineer) was going under. The danger of a contrary course is obvious, as well as the fact that a discharge ■of water and steam is not the only danger to be encountered, ■but that great injury or loss of life may be occasioned in ■such a case by manipulating the engine or moving the locomotive.

The engineer had no knowledge or notice that the plaintiff had gone, or was about to go, under the engine the second time. He was on the left-hand side of the engine, .engaged in his proper duties, and could not and did not see or hear the plaintiff when he returned, on the right-hand side, from putting up the card on the car, and went under the engine on that side without giving the engineer any notice of his intention to do so. The engineer had a right to assume that the plaintiff, as his duty and personal safety re-qumed, would give him notice of such intention, and to regulate his own conduct accordingly. lie was not bound to stop and consider whether it was probable that the plaintiff would fail to perform a duty so important to his personal safety or not; nor was it the duty of the engineer to search for the plaintiff, or give him any notice of his intention to open the blow-off cock. The plaintiff testified that when he came back from putting up the card he “ did not see the engineer, did not look into the cab, and did not say anything to him.” The plaintiff had no right to assume that the engineer saw him or understood that he was then going under the engine. It does not appear that he made any attempt to notify the engineer, who was within eight or ten feet of his engine all the time, though on the opposite side. Under these circumstances, and for these reasons, it cannot be maintained that the engineer was guilty of any negligence, or that there was any evidence upon which it ought to have been left to the jury to find a verdict upon that point.

It is said the engineer knew, or had reason to believe, that the plaintiff had not fully cleaned the ash pan and would probably return to and complete the work. But he was not required to consider or speculate upon that subject. Neither the fireman nor the engineer was under any duty to anticipate or speculate, in the absence of notice, as to what the other intended to or might or might not do. The engineer was entitled to rely upon the plaintiff’s giving notice of the-fact if he intended again to go under the engine, and might properly continue in his line of duty, as he did, until he received it, without being subject to the imputation of negligence. In the exercise of the rights and duties of the engineer and fireman, there must necessarily be conformity to the settled usage and uniform course of duty designed to secure their personal safety, or loss of life or serious personal. injury will ensue; and in view of tbe conceded facts, and in accordance with sound principle and adjudicated cases, there was, we think, no ground for imputing any negligence to' the engineer. Spencer v. O. & M. R. Co. 130 Ind. 181; Wolsey v. L. S. & M. S. R. Co. 33 Ohio St. 227, 235; Stevens v. S. F. & N. P. R. Co. 100 Cal. 569; Mason v. R. & D. R. Co. 114 N. C. 718.

2. But, if it be conceded that the case should have been left to the jury upon the question whether the engineer was. negligent, there can be no doubt whatever but that the-proximate cause of the plaintiff’s injury was his own negligence in disregarding and departing from the established usage and uniform course of conduct designed to secure his, safety. The evidence on this subject'is clear and decisive, and not open, we think, to doubt or difference of opinion. His omission to give notice that he was going under the engine the second time was clearly the cause of the acciident. How could he be said to have acted with ordinary care and prudence in omitting to give notice on his return from putting up the card on the freight car, when he did not look in the cab to see if the engineer, was there, did not speak to-him, and could not know whether he would open the blow-off cock or move the locomotive or not? It is no excuse-that the engine had been blown off, or partly so, at the last, station, or that he did not anticipate that it would be blown off so soon again. All this was a matter with which he had nothing to do, but was wholly within the province of the-engineer. Without notice to him, he took it upon himself to determine what the engineer might or might not do, and he assumed the risk of the most unfortunate consequences that ensued, because he failed to give the necessary notice. Abend v. T. H. & I. R. Co. 111 Ill. 202, 208; Darracutts v. C. & O. R. Co. 31 Am. & Eng. R. Cas. 157, and cases cited; La Croy v. N. Y., L. E. & W. R. Co. 132 N. Y. 570; Baltzer v. C., M. & N. R. Co. 83 Wis. 472; Francis v. K. C., St. J. & C. B. R. Co. 53 Am. & Eng. R. Cas. 410, and cases cited supra. It is therefore clear that the plaintiff was precluded by his negligent conduct from a recovery.

For these reasons, the circuit court erred in refusing to direct a verdict for the defendant.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.