PinNey, J.
1. We think that, in view of the evidence, the circuit court rightly denied the defendant’s motion for a non-suit, and also the request that a verdict be directed in favor of the defendant. The substance of the charge of negligence is that the guard rail was constructed, kept, and maintained in a careless and negligent manner, and that the space between it and the main rail was just wide enough to admit the sole and the heel of a boot or shoe, and allow the same to become caught and fastened, and that such space, in the present instance, was negligently and unnecessarily allowed by the defendant and its agents to remain without sufficient blocking or other protection, whereby, without fault on the part of the plaintiff’s intestate, while in the due performance of his duties, he was caught by the heel of his left foot, and held there, so that the defendant’s moving train ran over him, causing his death. The necessity of proper blocking of guard rails is not denied. The evidence tends to show that the defendant was guilty of negligence in this respect, which was the proximate cause of the death of the plaintiff’s intestate. It is not deemed necessary to set forth or discuss the evidence upon this point. It. is sufficient to say that in our judgment it was such as to entitle the plaintiff to have the [468] case sent to the jury, under proper instructions as to the law. Valin v. M. & R. Co. 82 Wis. 5, 6, and cases cited; Kane v. N. C. R. Co. 128 U. S. 91. The plaintiff’s intestate assumed the risks and dangers fairly and naturally incident to his employment, and if an unusual element or cause of danger was open and obvious, such that, in the exercise of ordinary care, he ought to have observed it and comprehended the danger likely to ensue, he assumed such risk, if he continued in the defendant’s employ. But the duties of yard employees are dangerous, and the company owes them the duty of careful and vigilant inspection to discover and remedy any fault, defect, or want of repair in the tracks, guard rails, switches, etc. The duty of the employee to exercise ordinary care as to any risk or cause of danger does not serve to relieve the company of its duty of careful and vigilant inspection, or devolve it on the employee; for the latter, while in the exercise of ordinary care, and until admonished in some manner to the contrary, has a right to assume that the company has properly discharged the duties it owes to him to secure his safety. And the company must be held to have known what by the exercise of careful and vigilant inspection it might have ascertained. Paine v. Eastern R. Co. 91 Wis. 340; Promer v. M., L. S. & W. R. Co. 90 Wis. 215, and cases cited; Goodrich v. N. Y. C. & H. R. R. Co. 116 N. Y. 398. The case is very different from what it would have been if the duties of the plaintiff’s intestate had required him to observe and make safe the condition of the guard rails and blockings in the yard. “ This court has repeatedly held, in effect, that, before an employee can be held to have assumed an unusual or extraordinary risk, he must know, or have reasonable means of knowing, of the precise danger to which he is exposed and which he thus assumes ; and that a mere vague surmise of the possibility of danger is not enough to take the case from the jury.” Kennedy v. L. S. T. & T. R. Co. 93 Wis. 32; Dorsey v. Phillips [469] & C. Const. Co. 42 Wis. 583. The evidence does not disclose any ground upon which it can be properly held, as a matter of law, that the plaintiff’s intestate assumed the risk of danger arising from the defective condition or insufficient blocking of the guard rail, to which the plaintiff imputes the accident.
It is vigorously contended that the plaintiff’s intestate was guilty of contributory negligence in going in between the cars to uncouple them, while in slow motion, using a stone, as he walked along, to loosen the coupling pin; that he could have signaled the engineer to stop, and could have taken the pin out without any danger, and that he had his choice which course he would take, and took the most dangerous one, and was therefore guilty of contributory negligence ; and that there can be no recovery. There was evidence of a custom or usage in this yard, which had the consent and approbation of the yard master, for the yard switchmen to go between the cars, coupling or uncoupling them, while in slow motion. There was no evidence to show that such an act is necessarily dangerous, or one which switchmen of ordinary care and prudence would not undertake; and, in view of the evidence as to the custom and usage, we cannot say, as a matter of law, that such an act is negligence, per se, which would defeat a recovery. It is enough to say that, if an act of negligence, the plaintiff’s intestate assumed the risk of all damages or injury proximately resulting from it, but not those resulting wholly from the negligence of the defendant in failing to keep the guard rail properly blocked. The evidence tends to show that the uncoupling of the car was safely accomplished while the train was in motion, and that the accident resulted solely in consequence of defects in the guard rail and blocking. The plaintiff’s cáse may well rest on this contention, and whether it is true or not is a question for the jury.
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PinNey, J.
1. We think that, in view of the evidence, the circuit court rightly denied the defendant’s motion for a non-suit, and also the request that a verdict be directed in favor of the defendant. The substance of the charge of negligence is that the guard rail was constructed, kept, and maintained in a careless and negligent manner, and that the space between it and the main rail was just wide enough to admit the sole and the heel of a boot or shoe, and allow the same to become caught and fastened, and that such space, in the present instance, was negligently and unnecessarily allowed by the defendant and its agents to remain without sufficient blocking or other protection, whereby, without fault on the part of the plaintiff’s intestate, while in the due performance of his duties, he was caught by the heel of his left foot, and held there, so that the defendant’s moving train ran over him, causing his death. The necessity of proper blocking of guard rails is not denied. The evidence tends to show that the defendant was guilty of negligence in this respect, which was the proximate cause of the death of the plaintiff’s intestate. It is not deemed necessary to set forth or discuss the evidence upon this point. It. is sufficient to say that in our judgment it was such as to entitle the plaintiff to have the [468] case sent to the jury, under proper instructions as to the law. Valin v. M. & R. Co. 82 Wis. 5, 6, and cases cited; Kane v. N. C. R. Co. 128 U. S. 91. The plaintiff’s intestate assumed the risks and dangers fairly and naturally incident to his employment, and if an unusual element or cause of danger was open and obvious, such that, in the exercise of ordinary care, he ought to have observed it and comprehended the danger likely to ensue, he assumed such risk, if he continued in the defendant’s employ. But the duties of yard employees are dangerous, and the company owes them the duty of careful and vigilant inspection to discover and remedy any fault, defect, or want of repair in the tracks, guard rails, switches, etc. The duty of the employee to exercise ordinary care as to any risk or cause of danger does not serve to relieve the company of its duty of careful and vigilant inspection, or devolve it on the employee; for the latter, while in the exercise of ordinary care, and until admonished in some manner to the contrary, has a right to assume that the company has properly discharged the duties it owes to him to secure his safety. And the company must be held to have known what by the exercise of careful and vigilant inspection it might have ascertained. Paine v. Eastern R. Co. 91 Wis. 340; Promer v. M., L. S. & W. R. Co. 90 Wis. 215, and cases cited; Goodrich v. N. Y. C. & H. R. R. Co. 116 N. Y. 398. The case is very different from what it would have been if the duties of the plaintiff’s intestate had required him to observe and make safe the condition of the guard rails and blockings in the yard. “ This court has repeatedly held, in effect, that, before an employee can be held to have assumed an unusual or extraordinary risk, he must know, or have reasonable means of knowing, of the precise danger to which he is exposed and which he thus assumes ; and that a mere vague surmise of the possibility of danger is not enough to take the case from the jury.” Kennedy v. L. S. T. & T. R. Co. 93 Wis. 32; Dorsey v. Phillips [469] & C. Const. Co. 42 Wis. 583. The evidence does not disclose any ground upon which it can be properly held, as a matter of law, that the plaintiff’s intestate assumed the risk of danger arising from the defective condition or insufficient blocking of the guard rail, to which the plaintiff imputes the accident.
It is vigorously contended that the plaintiff’s intestate was guilty of contributory negligence in going in between the cars to uncouple them, while in slow motion, using a stone, as he walked along, to loosen the coupling pin; that he could have signaled the engineer to stop, and could have taken the pin out without any danger, and that he had his choice which course he would take, and took the most dangerous one, and was therefore guilty of contributory negligence ; and that there can be no recovery. There was evidence of a custom or usage in this yard, which had the consent and approbation of the yard master, for the yard switchmen to go between the cars, coupling or uncoupling them, while in slow motion. There was no evidence to show that such an act is necessarily dangerous, or one which switchmen of ordinary care and prudence would not undertake; and, in view of the evidence as to the custom and usage, we cannot say, as a matter of law, that such an act is negligence, per se, which would defeat a recovery. It is enough to say that, if an act of negligence, the plaintiff’s intestate assumed the risk of all damages or injury proximately resulting from it, but not those resulting wholly from the negligence of the defendant in failing to keep the guard rail properly blocked. The evidence tends to show that the uncoupling of the car was safely accomplished while the train was in motion, and that the accident resulted solely in consequence of defects in the guard rail and blocking. The plaintiff’s cáse may well rest on this contention, and whether it is true or not is a question for the jury.
2. The court was requested, on behalf of the defendant, to [470] instruct the jury that, if they found “ that the injuries to the deceased were received in consequence of his slipping from or stumbling against the arm of the guard rail, then, the plaintiff cannot recover in this action,” but this instruction was refused. There was testimony before the jury sufficient, if believed by them, to sustain a verdict in favor of the defendant upon the ground specified in the instruction. If the plaintiff’s intestate received his injuries in consequence of his slipping or stumbling against the arm of the guard rail, then the injuries which caused the death of the plaintiff’s intestate were accidental, and such at least as were incident to his employment, and the risk of which, in such case, must be considered to have been assumed by him in entering upon his employment. The instruction so asked was expressed in clear and accurate terms, and was warranted by competent evidence. The defendant had a right to have it given to the jury as asked. Campbell v. Campbell, & Wis. 90-98. It was not clearly and directly stated in the general charge. It may be said, perhaps, to be an inference from the statement of the court that if both the defendant’s alleged negligence, and that it was the immediate or proximate cause of the accident which occasioned the death of Curtis, were established to the satisfaction of their minds, then the plaintiff was entitled to a verdict, “ but, if both or either of such alleged facts are not so satisfactorily proved, then the plaintiff is not, and the defendant is, entitled to your verdict.” We do not think it was sufficiently covered or embraced in the instruction on the subject of alleged contributory negligence, consisting of the plaintiff’s intestate “ having gone between the moving cars with a stone to loosen the pin and uncouple the cars, having done which, and while attempting to pass out from between'the cars, he was injured; that the defense insist that this was negligence on the part of the deceased, and that in attempting to pass from between the cars he stumbled against some object, and was overtaken [471] and crushed by a moving car;” that “if, in the manner already stated, you should believe that the deceased received his injuries in the way just mentioned, in such case your verdict should be for the defendant;” and also that if he “was negligent in passing between the moving cars in the manner and for the purpose stated, and that in attempting to pass out he stumbled as claimed, and in consequence thereof received his injuries, . . . you should find for the defendant.” The matter embraced in the instruction asked was, in the instructions thus given, so combined and connected with the matter of negligence on the part of the deceased as to deprive the defendant of all benefit of a proper instruction on this point. The instructions left the jury to understand that, in addition to proof that the injuries of the deceased were received in consequence of his slipping from or stumbling against the arm of the guard rail, in order to constitute a defense it must also appear that there was concurring negligence on the part of the deceased. The proposition as to the negligence of the deceased, and as to his alleged slipping and stumbling against the arm of the guard rail, are improperly combined in the instructions given. It was error to refuse the instruction asked, in view of the fact that it was not sufficiently and plainly embraced and covered in the general charge. In the most favorable view that can be taken of the general charge on this subject, it wTas indefinite and misleading.
There were some questions presented in relation to the admissibility of evidence, but, as they may not arise upon another trial, they do not require attention.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.