#### Polaski, Appellant, vs. Pittsburgh Coal Dock Company, Respondent.

December *16, 1907*

January *8, 1908.*

*Master and, servant:Negligence:Injuries to servant: Dangerous place to work: Duty of master: Rules and regulations: Court and jury: Nonsuit: Assumption of risk: Contributory negligence.*

1. Where a business is conducted by many servants performing work independently of each other and in which the work of one becomes periodically dangerous to another, it is the duty of the master to provide reasonable precautions against such danger, among which is promulgating rules and regulations for the giving of warning to persons likely to be endangered when such dangerous acts are about to be performed.

2. In some such cases the danger may be so obvious and imminent and the making of regulations so easy that their absence would constitute negligence as matter of law, while in other cases it becomes a question for the jury.

3. In an action by a servant for injuries from a car set in motion by another servant whose work was wholly independent except as it promoted the general operation of the master’s business, the evidence, stated in the opinion, is *held*to present a situation where a jury might properly decide that an omission of the master to promulgate rules and regulations governing the moving of the car constituted a want of due care on the master’s part, and that such negligence was the proximate cause of the plaintiff’s injuries, making a *prima facie*case of negligence and liability, and hence it was error to grant a non-suit.

4. There can be no assumption of risk from a negligent method of doing business of which the plaintiff had no knowledge.

5. A servant cannot be said to have assumed the risk of a car set in motion by another servant whose work was wholly independent, where the evidence tended to establish that the car was stationary when plaintiff stepped on the track in front of it; that plaintiff had no knowledge of the absence of a rule requiring a warning; that warnings were frequently given, although voluntarily; and that never, within the observation of the plaintiff, had a car been set in motion without the presence of another servant before it or of a lookout on top or a shouted warning to the men on the track.

*2606. Where a servant was injured by being run over by a car set in motion by another servant whose work was wholly independent, the injured servant cannot be convicted of contributory negligence, as matter of law, in the face of evidence tending to prove that the car was stationary at the time he stepped onto the track, that the servant in charge of the car was not in a position to be seen by him, that the injured servant had never known a car to be moved without some warning, and that he had no reason to expect that the car that injured him would be set in motion.

'Appeal from a judgment of the circuit court for Douglas-county: A. J. ViNje, Circuit Judge.

*Reversed.*

The defendant maintained a coal dock at the city of Superior about 900 feet in length and 300 feet in width, in the center whereof were three longitudinal railroad tracks-for the loading and moving of railroad cars, upon which cars-were frequently in motion, usually moved by attaching a hook to them and gripping unto a moving cable beside each track. It was necessary and customary for the workmen on the dock to pass frequently across these tracks, which were in a depression about four feet deep. The plaintiff was a common laborer and had, with sis other men, just completed the loading of a car on one of these tracks, when the gang were ordered by the foreman to cross the tracks to the other side of the dock. One after another they jumped down and started across in front of this car, which plaintiff’s testimony tends to show was stationary, with nothing to- indicate that it was about to be moved. As plaintiff passed in front off it, somewhat diagonally across the track, having seen it stationary as he started, it was put in motion and overtook him just as he reached the furthest or west rail of the track, knocked him down, and passed over one of his legs. There was evidence that no rule had been promulgated by the defendant in any wise tending to guard against the running-down of employees by these cars; that the gripman who had charge of moving them was accustomed indiscriminately to *261fasten on either the front or bach end; that under some circumstances there would be a man on top of the cars to set the brakes, at other times not; that the gripman’s habit was irregular; that sometimes he looked in front of the car or shouted warning of its approach and sometimes he did not, ■and that in the present instance he had fastened his grip to the rear end of the car, had not looked in front, and gave no warning. The negligence alleged in the complaint was the failure on the part of the defendant to promulgate any rule or regulation or to give any instruction tending in any wise to protect its employees from the peril of these moving cars, either by requiring signal and warning or the presence of any person in front of the car when moved; also in employing the plaintiff in an unsafe place without any such regulations, and in ordering him to cross the track after having directed the gripman to start the car. At the close of the plaintiff’s ■evidence the trial court granted a nonsuit, from judgment in accordance with which the plaintiff brings this appeal.

W. P. *Crawford*and *L. K.*Luse, for the appellant.

Eor the respondent there was a brief by *Grace & Hudnall,*■and oral argument by *H. S. Grace.*

Dodge, J.

In a business conducted by many employees performing work independently of each other and in which the work of one becomes periodically dangerous to another, it is the duty of the master to provide reasonable precautions against such danger, and amongst these is promulgating rules and regulations for the giving of warning to the persons likely to be endangered when such dangerous acts are about to be performed. *Promer v.*Milwaukee, *L. S. & W. R. Co.*90 Wis. 215, 63 N. W. 90; *Portance v. Lehigh Valley C. Co.*101 Wis. 574, 77 N. W. 875; *Bain v. N. P. R. Co.*120 Wis. 412, 981 N. W. 241; 1 Labatt, Mast. & Serv. § 210. Other illustrative cases are *Hartvig v. N. P. L. Co.*19 Oreg. 522, 25 Pac. 358; *Inland S. Co. v.*Smith, 39 Ind. App. 636, 75 *262N. E. *852; Ford v. L. S. & M. S. R. Co.*124 N. Y. 493, 26 N. E. 1101; *Dowd v. N. Y. O. & W. R. Co.*170 N. Y. 459, 63 N. E. 541. In some instances tlie danger is so obvious and imminent and the making of regulations so easy that their absence might be considered negligence as a matter of law. In other cases of more doubt it becomes a question for the jury whether the omission of them is a failure of that due care which the employer owes his employees to guard them from injury. In the present case we have no doubt that as cars were likely at any moment to1 be set in motion by some employees, and other employees, whose work was wholly independent except that it promoted the general operation of the dock, were likely at any moment to1 be upon the tracks engrossed with their work so that an injury to them from a silently moving car was within imminent probability, it might well be thought by reasonable men that the duty of ordinary care required that some precaution, either by warning or lookout, be exercised. It is also obvious that those precautions were entirely easy and feasible. A lookout might be stationed on the forward end of the car, a bell or other signal sounded or given, but more easy and natural still would have been the precaution that the gripman should uniformly attach the moving apparatus to the front end and thus be in a position where he could see the track ahead of him. The evidence tended to prove that absolutely no instructions or regulations requiring any precautions whatever had ever been promulgated, and such is the negligence charged by the complaint. We deem it clear that a jury might properly decide that such omission constituted a want of due care on the part of the employer, nor can we doubt that they might reach the conclusion that such negligence was the proximate cause of the injury to the plaintiff, who was in a place required by his duty and by the command of his superior. Hence we must conclude that a *prima facie*case of negligence and liability was made out.

*263It is claimed by the respondent that plaintiff assumed the risks of doing the business as it was ordinarily done. But there was evidence tending to establish that the plaintiff had no knowledge of the absence of a rule requiring warning; also that warnings were frequently given voluntarily by the gripman or others, and that never, within the observation of plaintiff, had a car been set in motion without either the presence of the gripman before it or of a lookout on top or a shouted warning to men on the track. There can be no assumption of the risk from a negligent method of doing business of which plaintiff has no knowledge.

Again, it is urged that plaintiff was guilty of specific acts of contributory negligence, in that he jumped onto the track immediately in front of the car. But there was evidence tending to prove that the car was stationary at that time, that the gripman was not in a position to be seen by him, and, since he had never known a car to be moved without some warning, that he had no reason to expect that this one would be. Upon such a state of facts, of course contributory negligence could not be predicated as matter of law; especially, too, when he had been given an order from his superior, who presumably knew whether there was peril, to enter upon and hasten across the track.

We are convinced that the case should have gone to the iw-

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