Osborne v. Lehigh Valley Coal Co.

71 N.W. 814, 97 Wis. 27, 1897 Wisc. LEXIS 2

• Court: Wisconsin Supreme Court
• Decided: September 28, 1897
• Status: Published

Opinion

The following opinion was filed June 11, 1897:

Uewmaít, J.

The general ground on which a right of recovery is claimed is the failure of the defendant to provide a safe place for the plaintiff’s decedent to do his work in.

It does not appear how long experience'the decedent had had at the employment at which he was engaged. But he was an adult man, and- must be presumed to have known and appreciated all such risks of the employment as were open and obvious to a man of ordinary apprehension. Jones v. Florence Mining Co. 66 Wis. 268; Luebke v. Berlin Machine Works, 88 Wis. 442; Klatt v. N. C. Foster L. Co. 92 Wis. 622. He is deemed to have assumed the risk of all such dangers of the employment as he either knew, or could have discovered by the exercise of reasonable attention. Such risks he fails to appreciate at his own peril. As against him, the defendant had the right to carry on its business in such place and manner, and with such appliances, as best suited its choice or interests, even if some other would have been safer, so that it did not violate the law of the land, nor expose him to dangers which he did not know and could not learn by the exercise of reasonable attention. Casey v. C., St. P., M. & O. R. Co. 90 Wis. 113, and cases cited; Guinard v. Knapp-Stout & Co. Company, 95 Wis. 482. That this was not a safe place to work in was obvious to any man of ordinary apprehension. This the plaintiff’s decedent could not fail to appreciate, if he gave the situation even slight attention. That there was need of constant circumspection in order to avoid obvious dangers, is manifest. Cars were coming to be loaded at all times of the night. They came without warning of bell or whistle. The work was done by the aid of uncertain and unstable lights, and amid the din and confusion caused by the work itself, and the machinery, and the moving cars, and obscured by the constant exhaust and leakage of the steam. With knowledge of the situation and of the manner in which the business was conducted, the decedent walked along the track on which cars might be expected at any time to come, and was struck by a coming car. The result must have been the same if the car had been coming at a slower and usual rate of speed. He was not, apparently, expecting it, or on the lookout for it. That he failed to appreciate the risk to which he was exposing him-self was not the defendant’s fault. The risk seems to have been inseparable from the business and the manner in which it was carried on.

If the decedent was momentarily forgetful of it, that, too, was a risk which he had assumed, and could not be attributed to the defendant as its fault. To walk upon a track where a moving car is to be expected at any moment, amid all the din and confusion and known dangers of the place, is little less than to invite disaster. In such a situation, one must be instantly alert. It does not help the situation to say that he did not appreciate the risk to which he was exposed.. Under the circumstances, he was bound, at his peril, to appreciate it, and to be on the alert to shun the danger. Because he was bound to know and appreciate the danger and did not shun it, he is deemed to have brought his misfortune upon himself, and is not entitled to recover from the defendant.

By the Oourt.— The order of the superior court of Douglas county is reversed, and the cause remanded for further proceedings according to law.

A motion for a rehearing was denied September 28,1897.