Luebke v. Chicago, Milwaukee & St. Paul Railway Company.

48 Wis. 79; s. c., 33 Am. Rep. 804. See also Uren v. Walsh, 57 Wis. 98. The above cases contain all that is necessary to be said on the rule and its application. Further discussion here would be superfluous.

By the Court.-The judgment is reversed and the cause remanded with directions to overrule the demurrer

LUEBKE V. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY. (59 Wis. 127.)

Master and servant - · negligence — dangerous employment — fellow-servants. The plaintiff, in the employ of a railway company. went under a car standing alone on a repair track, by order of his foreman, to repair it, and was there injured by the starting of the car by an advancing train. The track was usually protected. There was no proof of any precautions to protect it on this occasion. Held, that a nonsuit was improper.

A

CTION for personal injuries by negligence. The opinion states the case. The defendant had judgment below.

Chas. M. Bice, for appellant.

John W. Cary, H. H. Field, and Burton Hanson, for defendant.

ORTON, J. The plaintiff had been employed by the company to work at repairing cars on two tracks called repair tracks, which were kept locked except when a car had been repaired on one of the tracks and it was unlocked and the car run out. On the day of the accident, while the plaintiff was at work on the regular repair tracks, he with another was ordered by the foreman to go a short distance upon a side track to repair a car standing there and detached. He did not know that they were to make up trains on this track, and apprehended no danger. While he was under the car making the necessary repairs, and where it was necessary for him to be for that purpose, an advancing train of cars struck this car under which the plaintiff was on his knees to repair, and pushed it over him and caused his injury. These are briefly the facts. There was no evidence that any watchman had been placed

Luebke v. Chicago, Milwaukee & St. Paul Railway Company.

to guard this car so being repaired, or the plaintiff so repairing it, from danger from approaching cars on that side track. When it is considered that this kind of service upon the regular repair tracks was amply protected by locking up the tracks (a most praiseworthy precaution against danger from the negligence of others), the admission in the answer of the company to this action is candid and praiseworthy. The answer admits that while the cars are being repaired upon other than repair tracks, ordinary prudence, care, and the customs and regulations of the company require that such work should not be done except while the car is being protected by watchmen or other suitable protection." This admission of the answer sufficiently disposes of the claim most unworthily made on the argument, that it was the duty of the repairer himself, who is compelled to go under the cars to repair them, to provide his own watchmen and look out for himself.

Before seeking to apply the well-known principles of law to such a case, it may be well to dispose of the position assumed by the learned counsel of the respondent, that this plaintiff took the chances and hazards of a most dangerous service. Is this so? When a car is standing still and disconnected from any power which could move it, and in a place where there was not the remotest reasonable suspicion or apprehension that it would be moved or at all disturbed, where is the danger? There would be nearly the same danger in degree, and the same in principle, if a person should go under a two-horse wagon in a farmer's yard to repair it, without any apprehension that the farmer would hitch to it while he was so under it, and draw it over him. If the rule is to be established that any railway service is dangerous, because all employees are careless and negligent whose duty it is to guard him from injury, then there is no railway service which is not dangerous, and the employee takes his chances, not that the particular service or duty is dangerous in itself, but that it will be made so by the habitual negligence of everybody who might be able, by his negligence, to injure him. Under the effect of such a rule even travellers and passengers take the chances of a most hazardous and dangerous method of travel, and cannot complain if they are injured by such negligence as is the normal characteristic of railway service.

There are some presumptions upon which any one connected with the railway service, either as employee or passenger, has a right

Luebke v. Chicago, Milwaukee & St. Paul Railway Company.

to rely. They are (1) that the company has provided all necessary and proper means and appliances for his protection; and (2) that the employees themselves will do their duty in such responsible service. In this view, the business of repairing this car by the plaintiff, by going under it, which was necessary, was not dangerous service. The car would not move over him unless moved by some other force applied by the gross negligence of some one else. The car standing still and disconnected was not dangerous any more than any other inert body, and it was perfectly safe to lie down under its wheels, if necessary, as it could do no harm. The danger of this service consisted in the outrageous carelessness of somebody else in the management of the trains on that track, which he was not only not bound to presume, but he had no right to presume or expect. No; the service was not dangerous in itself, like going between cars when in motion, to couple or uncouple them or to go upon cars when in motion, to set the brakes, or other similar services, concerning which it has been held that the service is dangerous, and the employee takes the chances and hazards thereof.

Here the company admit that it was their duty to have had a watchman on this ground to prevent this collision, or at least to have. done what they reasonably should have done to prevent it. The Circuit Court granted a nonsuit in the case on the testimony in behalf of the plaintiff. There was no evidence whatever that the company had provided such a watchman. If the case had been fully tried the company might have proved that such an admitted and reasonable precaution had been taken. In such a state of the case, what is the presumption of the law as to this most important fact? If a watchman had been provided for that duty, the first presumption would be that he was on duty at the proper place; and if so, secondly, that he discharged that duty to prevent, if possible, the moving of the cars against the one under which the plaintiff was, so unconsciously of danger, at work, and the collision would not have occurred.

The conclusion from these presumptions is that the company did not, in this instance, provide a watchman or any other precaution, which they admit in their answer it was their duty to do. Besides, negatively at least, there was proof that no watchman was there. The company sought to show on cross-examination of the plaintiff, that the person who was working with him under the car or some one who did not arrive on the ground and who was to assist him in

Luebke v. Chicago, Milwaukee & St. Paul Railway Company.

the work, was the watchman; but this is not only denied by the plaintiff, but common sense would indicate that under the car being repaired was no proper place for a watchman to prevent a train of cars, far distant on the track, from running against the one under which he was at work. It may be, if it was in proof, that the company employed a watchman at this place who was competent, the company performed its full duty. To this extent at least they admit their duty, and that is sufficient for this case. This question is more one of fact than of law in this case, because the defendant company admit the law as claimed on behalf of the plaintiff. But the authorities are abundant that the company owed the absolute duty to the plaintiff, situated as he was, in the common and necessary business of the company, to have had a competent watchman to guard against his injury from moving the car under which he was at work. The cases of L. S. & M. S. R'y Co. v. Lavalley, 36 Ohio St. 221, and Vose v. L. & Y. Ry Co., 2 Hurl. & N. 728, are nearly parallel and closely in point, and many cases in this court are in principle the same. See Wedgwood v. C. & V. W. R'y Co., 41 Wis. 483; Bessex v. C. & N. W. R'y Co., 45 id. 477; Smith v. C., M. & St. P. R'y Co., 42 id. 526. Many other cases might be cited to show that the duty to provide a watchman, or some other proper precautions against the injury of one doing such service, was clearly that of the company; but this duty, as said several times before, is admitted in the answer. It is not perceived how the question of co-employees, or of the contributory negligence of the plaintiff, can have any place. The case should have gone to the jury, and the evidence upon the most vital issue should have been presented; for as the case stood when the nonsuit was granted, the defendant was clearly in fault in not providing a watchman, or some other proper precaution, to guard the safety of the plaintiff when placed by the company where he could not look out for himself.

By the Court. The judgment of the Circuit Court is reversed, and the cause remanded for a new trial.

Judgment reversed.

CASSODAY and TAYLOR, JJ., dissent on the ground that the injury was the result of the negligence of a co-employee.

Knox v. Knox.

KNOX V. KNOX.

(59 Wis. 172.)

Will--precatory trust.

A testator gave all his real and personal estate to his wife, her heirs and assigns forever, having full confidence in my said wife, and hereby request that at her death she will divide equally between my sons and daughters all the proceeds of my said property, real and personal, hereby bequeathed." Held, that the widow took a life estate, with the remainder in trust for the children. (See note, p. 494.)

A

CTION for construction of a will. The head-note states the

case.

Ordway & Hoyt, for appellant.

Stark & Brand and S. U. Penney, for respondent.

TAYLOR, J. The two important questions to be considered in the construction of the provisions of the will above quoted are: First, has the testator in his expressed request in said will clearly pointed out the persons, whom he desired to be the recipients of his bounty, and has he clearly defined the part of his estate which he desired they should receive? and second, does the language used by him clearly show that he intended it to be obligatory upon his wife to whom he had devised all his property in fee, and not merely advisory? The learned counsel for the respective parties have in their briefs and their oral arguments in this court discussed these questions in all their bearings, and have cited and commented upon most of the leading cases in the English courts and the courts of this country bearing upon them, and we acknowledge our obligation to them for the aid they have given us in the solution of the questions to be determined. The cases which have been before the courts involving the questions to be determined are so numerous that it would be impossible to cite and intelligently comment upon and analyze them without writing a treatise upon the subject of implied trusts. We shall therefore content ourselves with the citation of a few general rules or principles which the law-writers upon this subject have deduced from the adjudged cases, as applicable to the proper construction of wills of the kind under consideration.