Tayloe, J.
We think the decision upon the demurrer in this case must be held as conclusive upon the appellant that it was negligence on its part to permit its track to be incumbered with sticks and blocks of wood in the manner alleged in the complaint, at all places where the plaintiff was called upon to perform his duties in coupling or uncoupling the cars of the defendant. The allegation in the complaint is “ that it was the duty of the company to provide safe and' suitable appliances for coupling and uncoupling its cars, and to keep its track in repair and free from obstructions, as well along the side of the track as within it, so as [525]*525not unnecessarily to expose its employees to danger of personal injury,” and it then alleges facts showing that such duty had not been discharged by the company. This court having held that the complaint stated facts constituting a cause of action, it would seem that if, upon the trial, the facts are proved which are alleged, in the complaint as establishing the neglect of such duty imposed by law upon the defendant to be discharged towards the plaintiff, its employee, the defendant cannot be heard to say in this case that no such duty rested upon it. That question was settled against him on the former appeal. The only questions to be determined upon the trial of the case are: (1) Has the plaintiff established by proofs the facts set up in the complaint as, constituting the negligence charged against the company ? (2) Whether such negligent acts, if proved, were the cause of the injury to the plaintiff. (3) Whether the plaintiff had such knowledge of the neglect of the company in respect to these matters, that he must be presumed to have assumed the risk of,such neglect?
In this view of the case it was incumbent on the plaintiff to show affirmatively that at the time the accident happened the track, at the place where he was called upon to couple the cars, was in an unsafe condition by reason- of sticks and blocks of wood lying along-side of and near the track; that such sticks and blocks of wood caused his injury; and that such obstruction of the track was either known to the company or had existed for such length of time before the accident as to constitute notice to the company that the track was in an unsafe condition at that place. These facts are all found by the jury in favor of the plaintiff, and we think upon evidence which is sufficient to support such findings. That the first two propositions are amply sustained by the evidence there can be no serious question. As to the third, the' evidence is not so satisfactory. Still there was undoubtedly sufficient evidence' to send that question [526]*526to the jury; and, they Raving found substantially in favor of the plaintiff on that point under proper instructions by the court, the finding cannot be disregarded by this court.
The learned counsel for the appellant insists that the question whether negligence in keeping the roadway in a safe and suitable condition is negligence which, as between the plaintiff and the company, must be chargeable upon the company or upon a co-employee of the plaintiff, is an open question in this case, and he has submitted a very able argument upon the hearing to satisfy the court that the neglect of the company’s servant who is charged with the duty of keeping the track clear of obstructions and in a safe and suitable condition for use by those employees whose duty it is to use the same, is the neglect of a co-employee, for which the company is not chargeable. While, as said above, we think the question is not an open question in the case at bar, we are of the opinion that under the proofs in this case and the decisions of .this court the negligence in permitting the roadway to be obstructed with sticks and blocks of wood was the negligence of the company, and not merely the negligence of a co-employee of the plaintiff, within the rules of law which hold that one employee cannot recover of the master damages for injuries caused by the negligence of a co-employee. Whatever may be the rule of other courts upon this point, we think the following cases in this court settle the rule against the contention of the learned counsel: Smith v. C., M. & St. P. R. Co. 42 Wis. 520; Brabbits v. C. & N. W. R. Co. 38 Wis. 289; Wedgwood v. C. & N. W. R. Co. 41 Wis. 478; Schultz v. C., M. & St. P. R. Co. 48 Wis. 375; Dorsey v. P. & C. Const. Co. 42 Wis. 583; Bessex v. C. & N. W. R. Co. 45 Wis. 479. And my individual opinion is that the rule as stated in the cases above cited is sustained by the great weight of authority in this country.
The learned counsel for the appellant insists that the evi[527]*527dence discloses that the plaintiff had full knowledge of the allege'd obstruction of the defendant’s track which caused his injury, before the accident happened; and, if he regained in the employ of the company after such knowledge on his part, he assumed all the risks-, growing out of such obstruction. This alleged state of facts is matter of defense, and need not be negatived'by the plaintiff in making out his case. The burden of this:defense is, under the rules established in the courts of this state, itpon the defendant. See Randall v. N. W. Tel. Co. 54 Wis. 147; Hoth v. Peters, 55 Wis. 405; Kelly v. C. & N. W. R. Co. 60 Wis. 480; Hough v. Railway Co. 100 U. S. 225; McNamara v. Clintonville, 62 Wis. 207. See, also, Ind. & St. L. R. Co. v. Horst, 93 U. S. 291; Railroad Co. v. Gladmon, 15 Wall. 401. This question was also submitted to the jury, and they found Jn favor of the plaintiff.
•It is urged that this finding is wholly unsupported by the evidence. We think otherwise. The evidence shows that the plaintiff, when he received his "injuries, had only been in the defendant’s employ as a brakeiaan about two weeks; that he knew there was wood scattered along the track near the wood-piles on the road, but that he had not noticed that wood was scattered along the-traek at the place where he was injured. His testimony is the only testimony given oá’the trial on the question. His evidence shows that he had a general knowledge of the neglect óf .the company in keeping* its tracks clear about its wood-yards. There is, however, no evidence showing his knowledge of the condition of the ‘track at the place where the injury occurred. This evidence is not conclusive upon the plaintiff that he assumed all risk-which arose from such neglect of the company. Even had he known of the existence of the wood lying along the side of the track at the place where he was injured, it would not be conclusive against him. He might have had a general knowledge of the defects of the road, [528]*528but may not have had such knowledge of the dangerous character of such obstructions as to absolutely charge him with the assumption of all the risks arising from such obstructions. Notwithstanding his knowledge of the fact of the obstructions, still it was a question for the jury whether he was guilty of negligence in remaining in the employ of the defendant after such knowledge. Eor this reason, and because there was no evidence that he had knowledge of the particular obstruction which caused the injury, we cannot say that the verdict of the jury upon this question is against the evidence. See Spearbracker v. Larrabee, 64 Wis. 578; Wheeler v. Westport, 30 Wis. 392; Cuthbert v. Appleton, 24 Wis. 387; Russell v. M. & St. L. R.
Free access — add to your briefcase to read the full text and ask questions with AI
Tayloe, J.
We think the decision upon the demurrer in this case must be held as conclusive upon the appellant that it was negligence on its part to permit its track to be incumbered with sticks and blocks of wood in the manner alleged in the complaint, at all places where the plaintiff was called upon to perform his duties in coupling or uncoupling the cars of the defendant. The allegation in the complaint is “ that it was the duty of the company to provide safe and' suitable appliances for coupling and uncoupling its cars, and to keep its track in repair and free from obstructions, as well along the side of the track as within it, so as [525]*525not unnecessarily to expose its employees to danger of personal injury,” and it then alleges facts showing that such duty had not been discharged by the company. This court having held that the complaint stated facts constituting a cause of action, it would seem that if, upon the trial, the facts are proved which are alleged, in the complaint as establishing the neglect of such duty imposed by law upon the defendant to be discharged towards the plaintiff, its employee, the defendant cannot be heard to say in this case that no such duty rested upon it. That question was settled against him on the former appeal. The only questions to be determined upon the trial of the case are: (1) Has the plaintiff established by proofs the facts set up in the complaint as, constituting the negligence charged against the company ? (2) Whether such negligent acts, if proved, were the cause of the injury to the plaintiff. (3) Whether the plaintiff had such knowledge of the neglect of the company in respect to these matters, that he must be presumed to have assumed the risk of,such neglect?
In this view of the case it was incumbent on the plaintiff to show affirmatively that at the time the accident happened the track, at the place where he was called upon to couple the cars, was in an unsafe condition by reason- of sticks and blocks of wood lying along-side of and near the track; that such sticks and blocks of wood caused his injury; and that such obstruction of the track was either known to the company or had existed for such length of time before the accident as to constitute notice to the company that the track was in an unsafe condition at that place. These facts are all found by the jury in favor of the plaintiff, and we think upon evidence which is sufficient to support such findings. That the first two propositions are amply sustained by the evidence there can be no serious question. As to the third, the' evidence is not so satisfactory. Still there was undoubtedly sufficient evidence' to send that question [526]*526to the jury; and, they Raving found substantially in favor of the plaintiff on that point under proper instructions by the court, the finding cannot be disregarded by this court.
The learned counsel for the appellant insists that the question whether negligence in keeping the roadway in a safe and suitable condition is negligence which, as between the plaintiff and the company, must be chargeable upon the company or upon a co-employee of the plaintiff, is an open question in this case, and he has submitted a very able argument upon the hearing to satisfy the court that the neglect of the company’s servant who is charged with the duty of keeping the track clear of obstructions and in a safe and suitable condition for use by those employees whose duty it is to use the same, is the neglect of a co-employee, for which the company is not chargeable. While, as said above, we think the question is not an open question in the case at bar, we are of the opinion that under the proofs in this case and the decisions of .this court the negligence in permitting the roadway to be obstructed with sticks and blocks of wood was the negligence of the company, and not merely the negligence of a co-employee of the plaintiff, within the rules of law which hold that one employee cannot recover of the master damages for injuries caused by the negligence of a co-employee. Whatever may be the rule of other courts upon this point, we think the following cases in this court settle the rule against the contention of the learned counsel: Smith v. C., M. & St. P. R. Co. 42 Wis. 520; Brabbits v. C. & N. W. R. Co. 38 Wis. 289; Wedgwood v. C. & N. W. R. Co. 41 Wis. 478; Schultz v. C., M. & St. P. R. Co. 48 Wis. 375; Dorsey v. P. & C. Const. Co. 42 Wis. 583; Bessex v. C. & N. W. R. Co. 45 Wis. 479. And my individual opinion is that the rule as stated in the cases above cited is sustained by the great weight of authority in this country.
The learned counsel for the appellant insists that the evi[527]*527dence discloses that the plaintiff had full knowledge of the allege'd obstruction of the defendant’s track which caused his injury, before the accident happened; and, if he regained in the employ of the company after such knowledge on his part, he assumed all the risks-, growing out of such obstruction. This alleged state of facts is matter of defense, and need not be negatived'by the plaintiff in making out his case. The burden of this:defense is, under the rules established in the courts of this state, itpon the defendant. See Randall v. N. W. Tel. Co. 54 Wis. 147; Hoth v. Peters, 55 Wis. 405; Kelly v. C. & N. W. R. Co. 60 Wis. 480; Hough v. Railway Co. 100 U. S. 225; McNamara v. Clintonville, 62 Wis. 207. See, also, Ind. & St. L. R. Co. v. Horst, 93 U. S. 291; Railroad Co. v. Gladmon, 15 Wall. 401. This question was also submitted to the jury, and they found Jn favor of the plaintiff.
•It is urged that this finding is wholly unsupported by the evidence. We think otherwise. The evidence shows that the plaintiff, when he received his "injuries, had only been in the defendant’s employ as a brakeiaan about two weeks; that he knew there was wood scattered along the track near the wood-piles on the road, but that he had not noticed that wood was scattered along the-traek at the place where he was injured. His testimony is the only testimony given oá’the trial on the question. His evidence shows that he had a general knowledge of the neglect óf .the company in keeping* its tracks clear about its wood-yards. There is, however, no evidence showing his knowledge of the condition of the ‘track at the place where the injury occurred. This evidence is not conclusive upon the plaintiff that he assumed all risk-which arose from such neglect of the company. Even had he known of the existence of the wood lying along the side of the track at the place where he was injured, it would not be conclusive against him. He might have had a general knowledge of the defects of the road, [528]*528but may not have had such knowledge of the dangerous character of such obstructions as to absolutely charge him with the assumption of all the risks arising from such obstructions. Notwithstanding his knowledge of the fact of the obstructions, still it was a question for the jury whether he was guilty of negligence in remaining in the employ of the defendant after such knowledge. Eor this reason, and because there was no evidence that he had knowledge of the particular obstruction which caused the injury, we cannot say that the verdict of the jury upon this question is against the evidence. See Spearbracker v. Larrabee, 64 Wis. 578; Wheeler v. Westport, 30 Wis. 392; Cuthbert v. Appleton, 24 Wis. 387; Russell v. M. & St. L. R. Co. 32 Minn. 230; Cook v. St. P., M. & M. R. Co. 34 Minn. 45.
The appellant excepts to a few isolated sentences in the charge of the court. As we understand it, one exception to the charge is that the judge seemed to assume that there was a stick of wood near the track where the accident happened, and that the plaintiff stumbled over the same. Upon this question there is no conflict of evidence. The plaintiff states positively that there was a stick of wood lying on the end of the ties, and that he fell over it, and to save himself he threw up his hand and so received the injury. We think the learned judge might well assume that this fact was proved in the case, in the absence of any request that the fact should be submitted to the jury as a fact disputed by the defendant. Another objection to the instructions is that they ignore the question whether the negligence was not that of a co-employee. This objection has been disposed of above in this opinion.
It is further objected that the judge erred in stating to the jury that, in estimating the plaintiff’s damages, “he would be entitled to such a sum as he reasonably expended for the purpose of being cured of his injury, and such sum as he lost for his earnings by reason of the time which was [529]*529necessarily lost by his injury. He is also entitled to such sum as will fairly compensate him for the disfigurement of his person and the impaired use of his hand.” It is urged that in this statement the court improperly included “ what he had reasonably expended for the purpose of being cured of his injuries.” There can be no doubt that this is’a proper item of damages in cases of this kind. Rut it is urged that the plaintiff failed to show by his "evidence that he had expended any particular sum for that purpose, and therefore the jury ought not to take that into consideration. He did show that he had the care of two doctors, one immediately after his injury, and another a day or two after, who amputated his fingers. There are two reasons why the defendant ought not now to avail himself of,this objection: First, because the rule as stated was the correct rule, and,'if not applicable to the facts of the case because of the absence of any evidence showing the amount of his expenses in being cured, the defendant should have called the attention of the court .to. that fact; and a second and perhaps better reason why the defendant should not now avail himself of the objection is that the exception was not to the particular fact which is now alleged to be error, but to the statement as a whole. The exception was not, therefore, sufficiently specific, as -it is admitted that most of the matter excepted to was properly given to the jury. Had the specific exception been taken at the trial which is now taken, it is highly probable that the error, if any, would have "been corrected on the spot.
See notes to this case in 32 N. W. Rep. 529.— Rep.
• On the whole record, the case seems to have been fairly tried, and the damages awarded are moderate, considering the extent of the plaintiff’s injuries.
By the Oourt.— The judgment of the circuit court is . affirmed.