Meo v. Chicago & Northwestern Railway Co. , 138 Wis. 340 ( 1909 )

Dodge, J.

Tb'e first contention to tbe effect that no negligence on tbe part of plaintiff’s fellow-servants was shown must be overruled. Tbe whole situation was before tbe jury, including plaintiff’s position of peril. Tbe question whether the men dropped the rail before tbe usual command bad been given them was in conflict, and tbe inference whether tbe state of facts as found by the jury was such as to constitute negligence was one about which we think reasonable minds might differ.

It is urged that the injury is not within tbe description of sec. 1816, Stats. (1898), as amended by ch. 448, Laws of 1903, then in force, namely, one arising from a risk or hazard peculiar to tbe operation of railroads. We can discover no distinction in that regard .from tbe situation presented in Hardt v. C., M. & St. P. R. Co. 130 Wis. 512, 522, 110 N. W. 427, and consider tbe discussion in that case entirely applicable to this. Tbe woitk in progress was transportation, one of the distinguishing characteristics of railroad business. Chicago, K. & W. R. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585. The circumstances under which it was done, with necessity for baste from threat of frequent passing trains, and tbe embarrassment of standing ground by rails and ties, bring it fully within any fair meaning of tbe words of tbe statute.

By the Gourt. — Judgment affirmed.

Marshall, J., dissents.