Harsen v. Northern Pacific Railway Co. , 1909 Wisc. LEXIS 137 ( 1909 )

Siebeckee, J.

The appellant insists that the foregoing facts do not tend to show, as the jury found, that the foreman, Shaw, was negligent and that such negligence was the proximate cause of the plaintiff’s injuries. The facts show that the plaintiff was injured by the sliding of the skid :.and its collision with the timber lying near it. It is a reasonable inference from the evidence, as claimed by the plaintiff, that Shaw caused the skid to slide and injure the ■plaintiff by the push which it is testified he gave it while plaintiff had hold of the lower end and was waiting to assist in taking it off the platform and timber. Under the circum■stances under which the service was being performed the inquiry is: Did Shaw exercise that degree of precaution and ■care for plaintiff’s protection which the facts and circumstances shown demanded of him? Shaw’s conduct as to his •care must be tested by the rule that he was required to observe such care as ordinarily careful persons exercise under the same or similar circumstances. The inferences from the evidential facts are not so clear and obvious on this point that it can be said that reasonable minds could not differ in their conclusions, and hence it was a proper subject for de■termination by a jury.

It is urged that the icy condition of the skid was not known or reasonably to be anticipated by Sbaw, and that this condition caused it to slide off the platform and injure-the plaintiff. In the light of the fact that the service was. being performed in the-open in the winter season, and that the timbers when so exposed might naturally be covered with snow and ice, it cannot be said that this icy condition of the-skid could not have been foreseen by the exercise of ordinary-care by Shaw. We think the jury were amply justified in. their conclusion that Shaw omitted to exercise that degree of care demanded of him for the protection of the plaintiff under the circumstances, and that an injury such as resulted to the plaintiff was reasonably to be anticipated. This required submission of these issues to the jury, as the court held.

By the Court. — Judgment affirmed.