#### Emberg, Appellant, vs. Great Northern Railway Company, Respondent.

*February 4*

March *17, 1914.*

*Railroads: Injury to switchman: Unsafe place: Switch stand near track: Custom: Instructions to jury.*

1. If an appliance or place of work is obviously dangerous, not even a general custom — much, less, a few exceptional cases — will absolve the master from liability for an injury to a servant.

2. In an action by a switchman for injuries sustained by collision with a switch stand while he was climbing the ladder of a box car, the jury answered affirmatively a question as to whether it was customary for railroad companies having switch yards in that vicinity to locate switch stands for uses similar to those of the stand in question as close to the tracks as that stand was located. The court had instructed that this question did not inquire as to whether or not it was customary for the defendant and other railroad companies having switching . yards in that vicinity to locate all switch stands of the kind and intended for similar uses as this one at the distance from the rail mentioned, but only as to whether or not it was customary for such companies, in the ordinary course of their *397business, to locate some such switch stands at such distance from the rail. *Seld,*that the instruction was erroneous and prejudicial because it permitted or required the jury to answer in the affirmative if some railroad companies, in the ordinary course of their business, located some such switch stands — no matter how few so there were more than one — at that distance from the rail.

Barnes and Marshall, JJ., dissent.

Appeal from a judgment of tbe circuit court for Douglas county: EeaNk A. Ross, Circuit Judge.

*Reversed.*

*'W. P. Crawford,*for tbe appellant.

*J. A. Murphy,*for tbe respondent.

TimliN, J.

In tbis action by a switchman against bis employer for personal injuries sustained by collision with a switch stand, there were several charges of negligence in tbe complaint. Among them was one tendering an issue by averring tbe existence of a custom of placing switch stands farther from tbe railroad track than tbe switch stand upon which plaintiff was injured, which custom was known to defendant and which defendant negligently failed to observe. The jury by special verdict found the defendant guilty of want of ordinary care proximately contributing to produce plaintiff’s, injury by maintaining the switch stand with which plaintiff collided as it was maintained with reference to the railroad track. But the jury also found that it was customary for railroad companies having switch yards in that vicinity to locate switch stands for similar uses as close to the track as the switch stand in question. They also acquitted the plaintiff of contributory negligence. The learned circuit court changed the first answer of the jury so as to find that the defendant was not guilty of any want of ordinary care in’ maintaining the switch stand as it was, and allowed the other answers of the jury to stand and gave judgment for the defendant, dismissing the complaint

It will not be necessary to notice any other assignment of *398error except that relating to the instruction given with reference to the second question of the special verdict. This instruction was as follows:

> “This question of course does not inquire as to whether or not it was customary for the defendant and other railroad companies having switching yards in this vicinity to locate all switch stands of the kind and intended for similar uses as this one at the distance from the rail mentioned, but only as' to whether or not it was customary for such companies, in the ordinary course of their business, to locate some such switch stands at such distance from the rail.”

This instruction apparently authorized the jury to answer •the second question in the affirmative in case they found that it was customary for some railroad companies having'switch yards in the vicinity to locate some such switch stands at the same distance from the nearest rail; that is to say, if' a railroad company had one thousand switch stands of the kind in question and two were located at this distance from the rail although the customary distance as to all others was much greater, the jury nevertheless should answer the question in the affirmative. When we reflect that the real inquiry was not with reference to exceptional cases, the erroneous character of this instruction becomes apparent. If an appliance or place of work is obviously dangerous, even a general custom will not absolve the master from liability. *Nickels v. Manitowoc S. & D. D. Co.*153 Wis. 298, 303, 141 N. W. 269; ch. 485, Laws of 1911; secs. 2394 — 48, 2394 — 49, Stats. Much less would a few exceptional cases.

' It is true switch stands of a particular make or for some special purpose may be located nearer to the track than others, but that does not' authorize proving a custom or manner of construction by two or three instances out of a great number, if in the case under investigation and in these two or three instances the switch stand was so close to the track that a switchman boarding a moving car at night might, in the exercise of ordinary care, collide with the switch stand. We *399think the second question of Jhe verdict was properly submitted to the jury because an issue on this point was tendered by the complaint, but that the instruction above quoted was erroneous and prejudicial, not because it' failed to include all switch stands of the kind 'and intended for similar uses as the switch stand in question, but because it permitted'or •required the jury to answer this second question in the affirmative if some railroad companies, in the ordinary course of their business, located some such switch stands — no matter how few so there were more than one — at this distance from the rail.

Before taking up the trial of this case again it would be well for counsel to carefully read the decisions of the federal courts upon the scope and effect of the federal Employer’s Liability Act, which seems to be covered by the complaint and to have been disregarded on the trial.

*By the Court.*— Judgment reversed, and cause remanded for a new trial.

Baunes, J.

(dissenting). This court has endeavored to give effect to sec. 3072m, Stats., so as to carry out the purpose which it is conceived the legislature had in mind in passing it. In the numerous cases where that statute has been invoked, technical errors have been disregarded and judgments have been reversed only where it was believed that the error complained of might and probably did result in prejudice to the appellant. It will, I am sure, be taken as a truism by every one that the statute is general in its application and that plaintiffs in personal injury actions are no more immune from the operation of the law than are defendants in such actions. Courts endeavor as they should to enforce’ the law equally as to all, albeit they may not always accomplish, the ideal. Erom my reading of the evidence in this case I cannot think that there is even a remote possibility that the error complained of harmed the plaintiff or had any effect on *400the jury in. answering the second question in the special verdict.

The error consisted in using the word “some” in the instruction quoted in the opinion of the court. The question and answer were as follows:

> “(2) Was it customary for railroad companies having switch yards in this vicinity to locate switch stands for uses similar to those of switch No. 49 as close to the tracks as switch No. 49 was located? *A.*Yes.”

It is said in the opinion that the jury might have answered the question as it did if the evidence showed that a railroad company had one thousand switch stands and two of them were- located as close to the track as was the one which injured the plaintiff.

• The evidence showed that the base of the switch stand which injured the plaintiff was four feet and six inches from the outside of the rail, and that the clearance was four feet three inches. The defendant offered no evidence to show that this distance was the customary and usual one as to a few of its yard switches or as to a few dozen of them or as to a few hundred of them. It did not offer a shred of testimony in relation to isolated cases except as will be hereafter noted. The testimony of its witnesses further showed that it used three practically uniform standards and that such standards were the ones that were commonly in use by railroad companies generally. Crown or stub switches usually have a clearance of three feet three inches. These switches have no upright arm, so they could not injure a man riding on the side of a box car. The standard switch for use in yards, as above stated, has a clearance of four feet three inches between the switch standard and the rail at the nearest point. The third class of switches is what is known as main-line switches, and the clearance between the nearest point of these switches and the outside of the rail on the Great Northern road is five feet three inches. We are not particularly con-*401eemed with, either the máin-line switch or the stub switch in this case. Now the yard switches, according to the testimony of the defendant, which are not built in accordance with this standard, are those on curves and where the character of the ground is such that the switch cannot be placed at this distance. The testimony showed, for instance, that as to switch No. 50, which was on a curve, the distance was one foot greater than the standard distance. The reason for this is of course obvious, — the clearance at either end of a car might not be as great as if the track were straight. Switch No. 43 was also a foot further from the rail than the standard distance, because if it were placed at the standard distance it would be in a culvert.

Mr. Donley, the general roadmaster of the *Great Northern Railway Company,*testified to these standards very fully, and furthermore that these standards are generally in use by the railroads of the country and that the clearance was the same; that the switch rods were interchangeable. He further testified that there were forty miles of track in the Great Northern yards at Superior, and the other evidence is to the effect that there were hundreds of switches in this yard.

Peter Jensen, the assistant roadmaster of the same road, testified to substantially the same state of facts. So did Elynn, the roadmaster of the defendant at Superior. So did Mealy, section foreman at Superior. O’Bevan, switchman for the defendant, testified to substantially the same state of facts. This witness further testified that he had worked in the Burlington yards, the Milwaukee yard at Chicago, and in the terminal yard at St. Louis; that while he didn’t measure the distance the switches were from the track, in his judg- . ment the distance was the same as in the Great Northern yard at Superior. Wedemeir, a member of the switching crew at the time plaintiff was injured, testified that he measured the clearance between the rail and switch No. 49, and he corroborates the testimony of the other witnesses. He further *402testified tkat ke observed tke distance tkat various switckes in various parts of tke yard were from tke track, and tkat tkis switck 49 was tke same distance as tke otker switckes generally tkrougkout tke various yards. Oliver, tke nigkt foreman, testified tkat tke switckes of tke ckaracter of tke one on wkick plaintiff was kurt were about tke same distance from tke track. Mekan, yardmaster of tke Dulutk, Missabe & Northern Railway Company, wkick operates a very large switching yard at or near Dulutk, testified tkat tke uniform distance of tke switckes in their yard from tke nearest rail was four feet four inches, and tkat suck switckes were in general use in otker yards. Also tkat tke switck used by their company was a standard switck and in general use in tkat part of tke country. Tkompkins, yardmaster for tke Terminal Company, wkick operates large switching yards in Superior, testified tkat there was a standard distance for switck stands in yards; tkat suck standard distance was four feet six inches with a clearance of four feet three inches. He gave tke same testimony in reference to stub switckes and main-line switckes tkat was given by tke otker witnesses referred to. Wells, general trainmaster for tke Omaha road, testified tkat ke had been in tke railroád service for twenty-two years, worked for tke Great Northern, Northern Pacific, Missouri Pacific, Union Pacific, Great Western, and Omaha roads, and tkat ke had been in tke Superior service about three years and was familiar with tke switckes in tke yards and tke distances from tke same to tke tracks on tke various railroads generally; tkat all railroads have a standard uniform distance for switckes from tke rail; tkat ke was familiar with switck 49 on tke Great Northern and tkat it conformed to tke standard generally in use on railroads where tke same service was being done as was done by switck 49.

We now turn to plaintiff’s evidence. The plaintiff himself testified tkat the customary distance to place switck stands *403from the track at the head of the lakes was sis feet. Lapier said that the distance of high switch stands from railroad tracks in yards generally was five to six feet, and that switch 49 was closer to the track than other switches in the Great Northern yard. Hoeffner testified that the standard distance was between five and six feet. Vincent probably intended to testify to the same state of facts, although it appears quite satisfactorily from the evidence that his testimony related to main-line switches, principally at least.

All of this testimony was directed to the customary distance of placing switch stands from the rail in switching yards. The court evidently was of the opinion that the tes-' timony of the plaintiff and of the witnesses Lapier, Hoeffner, and Vincent raised an issue as to what the customary distance was, and hence submitted question 2 to the jury. I think I have not overlooked any testimony of any importance bearing on the customary distance of locating switch stands from the nearest rail in switching yards. The plaintiff, however, caused some measurements to be made of switches in a few isolated cases in some of the yards and had the witnesses who made the measurements testify. The witnesses Gormley and Oressette measured four switches in the Great Northern yard, four in the yard of the Terminal Company, three in the Northern Pacific yard, two in the South Shore yard, two in the Soo yard, one at the crossing of the Great Northern and Northern Pacific, and also some switches in the Omaha yard, no data in reference to which are given. Vincent measured five switches in the yard of the Terminal Company and some in the South Shore yard, the number not being given. Daoust measured five switches in the yard of the Duluth, Missabe & Northern Eailway. Some of these switches were unquestionably main-line switches, but it is difficult to tell how many. The distance found varied from five feet six inches to seven feet one inch, with the exception *404of one switch in the Great Northern yard, where the distance was found to he three feet eight and one-half inches; it does not appear whether this was a stub switch or not.

It will be observed that these measurements show that all of the switches measured, with one exception, were further from the rail than was switch 49, and further than the standard distance for yard switches as testified to by most of the witnesses. If the testimony in reference to the measurements made of a few isolated switches, among the thousands in the Superior and Duluth yards, was material for any purpose, it was in connection with some general statements made that no difference was noticed between the switches measured and those which were not, so that such measurements indicated that the standard distance was greater than that testified to by the defendant’s witnesses. If it had any other possible bearing, it must have been to show a different standard from that testified to by defendant’s witnesses and by some of the witnesses for the plaintiff. By no possibility could this testimony be of any aid to the plaintiff in securing an affirmative answer to the second question, because in every single instance but one the distance testified to was greater than was the distance between switch 49 and the rail.

So we have the evidence of defendant’s witnesses and of some of plaintiff’s as well, ten in number in all, that switch 49 was a standard switch placed at the usual and customary distance from the track for yard switches. This evidence was given for the most part by men who either made actual measurements or who knew what the fact was. It applied not to a few isolated switches, but to the hundreds if not thousands of switches in the yards of Superior and Duluth. In the exceptional cases mentioned the switches were further from the rails. We have the evidence of the plaintiff’s witnesses that switch 49 was not placed the customary distance from the rail, because such distance was from five to six feet, and this raised the issue which the jury was called upon to *405decide. There was no dispute as to bow far switch 49 was from the rail. Aside from the evidence relating to the customary distance, there was the evidence referred to of measurements made of a few switches in several of the yards. That testimony could not benefit the defendant, because, except as to a single switch, the- distances found were greater than the standard claimed by defendant. The defendant’s whole defense rested on the proposition that there was a uniform standard for yard switches and that switch 49 belonged to that standard. There was abundant, in fact well nigh overwhelming, evidence to support this proposition. There was no evidence that switch 49 was in a small class by itself. Should this court say that the jury disbelieved the array of witnesses who testified in defendant’s behalf on this point and answered the question as it did because of the court’s instruction which had no substantial support in the evidence ? What the court evidently intended to tell the jury was that it was not necessary that all switches should be placed at a uniform distance from the rail in order to warrant an affirmative answer to the second question.

I think that the instruction, looking at it from any viewpoint, was harmless and that the defendant was entitled to the benefit of the verdict and that the decision in this case is a backward step in the administration of the law.

It is very probable that under the facts shown in this case either party had the right to insist that the federal law was applicable to it. Neither party requested that it be tried under such law, and under the *Leora*and *Sanson*Gases, decided herewith, the right was waived as to the trial already had.

Maeshall, J. I concur in the foregoing opinion, of Mr. Justice BarNes.