Scidmore v. Milwaukee, Lake Shore & Western Railway Co.

61 N.W. 765, 89 Wis. 188, 1895 Wisc. LEXIS 137

• Court: Wisconsin Supreme Court
• Decided: January 8, 1895
• Status: Published

Opinion

MewmaN, J.

The clearance post is a common appliance in the operation of railroads. Men experienced in the business deem it a useful appliance, in that it conduces to greater safety in the operation of trains. No appliance is found which can remove, altogether, danger from the operation of, trains. Danger is inherently and necessarily attendant upon the business. It is the duty of operators of railroads to reduce the danger so incident to the operation of railroads, so-far as it is practically possible, by the use of such appliances as are in common use and as have been proved’ by experience to be useful in averting danger. A failure to use such tested and approved appliances has often been held to be-negligence. It cannot be held that the existence of the-clearance post at the place of the accident was negligence. So it is -not shown that the negligence of the defendant was the cause of plaintiff’s accident.

The plaintiff, by accepting defendant’s employment, assumed all the ordinary risks of the employment which were-known to him or which he might have known by reasonable attention. He knew that clearance posts were used along the defendant’s road, and he knew for what purpose-they were used. He should have anticipated the existence of a post at the place of his accident. That was the very place where it was to be looked for. Whatever of danger was incident to the existence of that post at that place was. one of the ordinary hazards of his employment. So the-plaintiff’s case fails upon both grounds. The judgment of nonsuit was right.

By the Oourt.— The judgment of the superior court of Milwaukee county is affirmed.