Burnell v. West Side Railroad , 87 Wis. 387 ( 1894 )

Cassoday, J.

It appears from the foregoing statement that the danger of injury to the motorman while cleaning the commutator in the manner indicated therein was open and obvious to any person of ordinary intelligence. The plaintiff was at the time twenty-four years of age, and we must assume that he was possessed of such intelligence. Upon his application for employment as such motorman by the defendant, he was put under the instruction of the defendant’s employees for a period of eight days, to fit him for such employment. During that period he had been instructed that it was the motorman’s duty to clean the commutator at the end of every alternate trip of his car, and he had seen the motorman so clean the commutator at least on two occasions. With such instructions and opportunity for instruction and observation, the plaintiff, at the end of eight days, entered the employment of the defendant as such motorman, and, of course, thereby undertook to perform such duties of the motorman. After continuing in such employment for three days, during which time he must, in the ordinary course of the business, have repeatedly cleaned the commutator, he was injured as stated. Upon the facts of this case, and the well-settled rules of law applicable, we must hold that the injury to the plaintiff was one of the ordinary risks of his employment, and that he assumed the same upon entering such employment under the circumstances stated. Stephenson v. Duncan, 73 Wis. 404; Goltz v. M., L. S. & W. R. Co. 76 Wis. 136; Sweet v. Ohio Coal Co. 78 Wis. 127; Paule v. Florence Mining Co. 80 Wis. 350; Corcoran v. Milwaukee G. L. Co. 81 Wis. 193; Haley v. Jump River L. Co. 81 Wis. 421.

We think the case is clearly distinguishable from Nadau v. White River L. Co. 76 Wis. 120, and Chopin v. Badger Paper Co. 83 Wis. 192, relied upon by counsel. The decision of the first of these cases was based upon evidence to the effect that the plaintiff was nineteen years of age and wholly unaccustomed to machinery; that he was placed at work where he was unnecessarily exposed to danger not usually attendant upon his employment, without being warned of such danger. In the second of these cases the plaintiff was eighteen years of age, and the decision was based upon findings of the jury to the effect that the plaintiff was not of sufficient age, understanding, and experience in the business to comprehend the dangers incident to such work or employment; that he had not, prior to the accident, been sufficiently instructed or cautioned by the defendant as to the danger of the work, to enable him to comprehend and understand it; and that he was free from contributory negligence. We think the case is also distinguishable from Darcey v. Farmers' L. Co., ante, p. 245, since the injury in that case was by reason of a danger not usually attendant upon his employment, and of which the plaintiff had not been warned.

By the Gourt.— The order of the superior court of Milwaukee county is reversed, and the cause is remanded with direction to sustain the demurrer, and for further proceedings according to law.