Sparks v. Wisconsin Central Railway Co. , 139 Wis. 108 ( 1909 )

Dodge, J.

The direction of verdict was predicated upon the conclusion of the trial court that the evidence failed entirely to show negligence of defendant proximately causing the injury and also that contributory negligence on the part ■of deceased appeared conclusively. Such decision is the error assigned and presented for consideration.

1. The moving of cars through a yard in which various ■employees are constantly employed upon and about the tracks, without any precaution in the way of signal or lookout at the forward end of the moving cars, is conduct which, under the ■decisions of this court, will support a finding of negligence. If there is no rule or regulation for such precautions, that may be negligence of the employer. Promer v. M., L. S. & W. R. Co. 90 Wis. 215, 68 N. W. 90; Bain v. N. P. R. Co. 120 Wis. 412, 98 N. W. 241; Polaski v. Pittsburgh C. D. Co. 134 Wis. 259, 114 N. W. 437. If there are sufficient and adequate rules, but failure to comply with them, the negligence may be that of fellow-servants. Smith v. C., M. & St. P. R. Co. 91 Wis. 503, 65 N. W. 183; Portance v. Lehigh Valley C. Co. 101 Wis. 574, 77 N. W. 875. The distinction is, however, immaterial in the case of railroad operations. ■Sec. 1816, Stats. (1898). There was in this case evidence tending to prove that regulations requiring lookout were duly prescribed, but that no such, or any, precaution was in fact taken. No person was in position to see whether any employee was in danger or to give him warning of the approaching train or car, and no signal was given. There was evidence, therefore, of negligence for proximate results of which ■defendant would be responsible. Indeed the trial court apparently did not differ from this view, but based the direction of verdict upon absence of proximate causal relation between ■defendant’s want of care and the deceased’s injury, because the former could not have anticipated that the latter would, in performing his duties, have done the particular acts proved against him; in other words, that this particular accident and injury to this particular employee was not within reasonable anticipation. That is not at all essential to proximate causation. It is enough that defendant should, in exercise of reasonable foresight and intelligence, have anticipated as within the probabilities some injury to some person. Meyer v. Milwaukee E. R. & L. Co. 116 Wis. 336, 93 N. W. 6; Schmeckpepper v. C. & N. W. R. Co. 116 Wis. 592, 595, 93 N. W. 533; Feldschneider v. C., M. & St. P. R. Co. 122 Wis. 423, 431, 99 N. W. 1034; Morey v. Lake Superior T. & T. Co. 125 Wis. 148, 156, 103 N. W. 271; Owen v. Portage T. Co. 126 Wis. 412, 419, 105 N. W. 924. The cited cases declaring the absence of warning or lookout to be legal negligence are predicated upon the view that such probability of injury exists, for mere carelessness from which no injury to another can. be anticipated is not negligence in tbe legal signification. Compty v. C. H. Starke D. & D. Co. 129 Wis. 622, 109 N. W. 650. Apart from such authority, however, we deem an inference entirely justifiable that the unwarned shunting o£ cars over tracks, in yards where men are variously employed upon and about such tracks upon independent work engrossing their attention, is so fraught with danger of collision with such employees that any reasonable man should anticipate-some injury as within the probable results of such practice. We must therefore hold that the question of defendant’s negligence and its causal connection with deceased’s injury was supported by some evidence.

2. The more doubtful question is that of contributory negligence. Deceased, it is asserted, placed himself in a position of danger. But railroad employees necessarily place themselves in dangerous positions. Acts on their part are customary which would be most obvious negligence in others. Bain v. N. P. R. Co., supra; Hardt v. C., M. & St. P. R. Co. 130 Wis. 512, 520, 110 N. W. 427; Hayes v. C., M. & St. P. R. Co. 131 Wis. 399, 111 N. W. 471; Polaski v. Pittsburgh C. D. Co., supra; Bucher v. Wis. Cent. R. Co., post, p. 597, 120 N. W. 518. Indeed the great majority of injuries to-railroad employees occur because they place themselves in positions of danger. They are required to do their work hurriedly and be in places to enable its performance expeditiously and effectively and to rely for their security on the ordinary safeguards and care of others. Fitzgerald v. International F. T. Co. 104 Minn. 138, 116 N. W. 475; Karr v. Milwaukee L., H. & T. Co. 132 Wis. 662, 113 N. W. 62. Being in close proximity to a track is no worse than being upon a track in order to perform one’s duty, as in Polaski v. Pittsburgh C. D. Co., supra. There was credible evidence tending to prove that the expeditious and effective performance of the car inspector’s work required him to be several feet away from the inspected train, because, if so close that. lie could Hot readily transfer bis eye from tbe running gear to tbe numbers on tbe sides of tbe cars, tbe effectiveness of bis discovery of any defects was greatly diminished. He could not place himself nearer than midway between tbe two tracks, wbicb would be two and one-half feet from tbe inspected train. But there was evidence tending to show that tbe space midway between tbe two tracks was embarrassed by a ridge of ice. Obviously tbe strained, crouching position wbicb be must assume demanded a safe foothold, and tbe jury might well conclude that be necessarily assumed tbe position close to tbe south track. Probably tbe unnecessary placing of him■self close to a railroad track upon wbicb be might expect cars to be moved at any moment without warning, or without ability to effectively warn him, would be negligence per se, but there is evidence tending to negative any such expectation. Tbe caboose, stationary upon this track, with brakes set and intended to be the rear end of tbe train then being made up, was some assurance to him against tbe likelihood of any movement of cars where be placed himself. There is evidence that under such circumstances tbe caboose remained substantially stationary and served as an effective buffer to tbe cars backed against it. Its presence for tbe known purpose was an assurance also against any use of that track for other switching operations wbicb might imperil deceased. Bain v. N. P. R. Co., supra. Evidence also tended to show that if by any contingency tbe caboose should need be moved far enough to strike deceased, it would be a very slow movement, and one wbicb tbe presence of a man in front of it would enable effective warning'against, and that such presence and warning was usual and, indeed, required by rules. True, there was some testimony tending to prove abrogation of such rules, but it was not undisputed, and tbe witnesses were so contradicted and self-contradictory that tbe jury might well, have disbelieved their statements on this subject.. Prom all these considerations we cannot persuade ourselves that the deceased's conduct is conclusively shown to have been so variant from that ordinarily exercised by ordinary careful men under like circumstances that reasonable minds might not differ as to whether it constituted negligence. We think that question also should have been submitted to the jury.

The printed case on this appeal inexcusably infringes Supreme Court Rule 6, in that there is no attempt to abridge the testimony, which is reproduced apparently from the reporter’s minutes in form of question and answer and without eliminating unnecessary repetitions or matter wholly immaterial to the questions raised on the appeal. Counsel owe the duty of relieving the court from wasteful expenditure of time and labor to at least the extent commanded by this rule. Unless they do so, they are by Rule 44 denied costs for printing a case or brief which is not in compliance.

By the Court. — Judgment reversed, and cause remanded for new trial; no costs for printing case.