#### Laughy, Respondent, vs. Bird & Wells Lumber Company, Appellant.

*September 8*

September *29, 1908.*

*Master and servant: Assumption of risk: Knowledge of defects: Railroad brakeman: Defective track: Negligence in making flying switch: Questions for jury.*

1. An employee who has as good an opportunity as his employer to know of defects or dangerous conditions attending his work assumes the risk thereof if he voluntarily and without protest continues in the employment.

2. But defects which are discoverable hy the exercise of such care as is required of the employer are not necessarily discoverable by such attention to his surroundings as an employee is hound to give.

3. The employee is only required to see and comprehend those defects or imperfections which would ordinarily attract the attention of a person under the same or similar circumstances, in the exercise of ordinary care.

4. Whether an employee in any particular instance is chargeable with knowledge of conditions imperiling his personal safety is generally, though not always, a question for the jury.

5. A railroad brakeman engaged in switching cars was not bound to search or look specially for defects in the track and roadbed likely to cause injury, in the absence of circumstances reasonably suggesting the existence of such defects.

6. In an action for injuries to a brakeman while making a flying switch, resulting from the derailment of an engine tender by reason of the defective condition of the track and roadbed at a curve, one of the defects being the insufficient elevation of the outer rail, it is *held*upon the evidence that t-he question as to assumption of the risk was one for the jury.

7. Whether, in such a case, if the brakeman was not chargeable with knowledge of the dangerous condition of the track and roadbed, he was negligent in causing the flying switch to be made as it was, was also, upon the evidence, a question for the jnry.

Appeal from a judgment of the circuit court for Manito-woc county: Michael KiewaN, Circuit Judge.

*Affirmed.*

Action to recover for personal injuries.

October 28, 1905, defendant was operating a logging rail*302road and plaintiff, an experienced railroad man, was in its employ as brakeman. While be was engaged in the regular course of bis duties aiding and directing in making a “drop” or “flying” switch at a point where there was a down grade toward the switch and a six-degree curve in the track, he was injured by breaking his anide, permanently crippling him to some extent. In order to make the switch the engineer under plaintiff’s direction pushed the string of cars, consisting of a box car next to the engine and a number of logging cars, back up grade beyond tbe switch till signaled by plaintiff to stop, and then upon signal he gave them motion down the grade at the rate of some four miles per hour and till signaled to give slack so plaintiff could cut off the logging cars. After the cut-off occurred the engine tender and box car were caused to go down the grade with sufficient speed to pass the point of the switch before the cars reached it, allowing them to pass in on the side-track. As the engine rounded onto the curve the tender left the track. Plaintiff, observing that the car upon which he was riding would inevitably be wrecked, jumped off with the result complained of.

The negligence alleged was that the roadbed where the tender left the track was rough, unsettled, and improperly graded and leveled; that there was an insufficient number of ties to fasten and hold the rails; that the rails were light and negligently fastened to the ties and to each other; and that the track was not ballasted, so that the ties rested lightly upon the roadbed, in the whole making an insecure and dangerous roadbed and track which caused the derailment and consequences. There was evidence tending to establish the affirmative of the question submitted to the jury covering the subject of defendant’s negligence, which was as follows:

“Considering the state of the roadbed, the weight and size of the rails, the size and number of the ties supporting each rail, the fastenings of the rails to each other, and to the ties, *303the amount of ballast between the ties, the degree of the curve in the track, and the elevation, of the outside rail of the track on the curve, at the time and place of the derailment shown by the evidence, was the condition of defendant’s railroad then and there so defective that it was not reasonably safe for the use then being made thereof for the work in which plaintiff was then engaged ?”

The jury answered in the affirmative and found in plaint' iff’s favor on other questions, in the whole establishing his right to recover. The damages were fixed at $3,500. Judgment was rendered accordingly, exceptions being saved to present the questions referred to in the opinion.

Eor the appellant there was a brief by *J. C. Morgan*and *Eastman & Martineau,*and oral argument by *E. O. Eastman.*

As to plaintiff’s assumption of the risk they cited *Schmitt v. Hamilton Mfg. Go.*135 Wis. 117, 115 N. W. 353, and cases cited; *Naylor v. G. & N. W. B. Go.*53 Wis. 661, 664; *Faber v. G. Beiss G. Go.*124 Wis. 554, 560; *Writt v. G-i-rard L. Go.*91 Wis. 496, 499; *Clark v. St. P. & S. G. B. Go.*28 Minn. 138, 2 Am. & Eng. K. Oas. 240, and cases cited on p. 242; *Portance v. Lehigh Valley G.- Go.*101 Wis. 574, •581; *Kelly v. Abbot,*63 Wis. 307, 309; *Evansville & B. B. Go. v.*Barnes, 137 Ind. 306, 36 N. E. 1092; *McMillan v. Spider Lahe S. M. & L. Go.*115 Wis. 332, 335; *Wood v. Loche,*147 Mass. 604, 18 N. E. 578; *Glarh v. Mo. Pac. B. Go.*48 Mo. 654, 29 Pac. 1138; *Chicago & N. W. B. Go. v.*Donahue, 75 Ill. 106; *Mich. Cent. B. Go. v. Austin,*40 Mich. 247, 250; *Bagon v. T., A. A. & N. M. B. Go.*97 Mich. 265; *Hewitt v. F. & P. M. B. Go.*67 Mich. 61, 66; *Bysclorp v. George Pankratz L. Go.*95 Wis. 622, 626; *Watts ■v. Hart,*7 Wash. 178, 34 Pac. 423, 425; *Atlas E. Works v. BandaTl,*100 Ind. 293; *Peterson v. Sherry L. Go.*90 Wis. 83, 62 N. W. 948; *Wormell v. Me. Gent. B. Go.*79 Me. 397, 31 Am. & Eng. E. Oas. 272, 278; *Wilson v. W. & St. P. B. Go.*37 Minn. 326, 33 N. W. 908; *Coombs v. Fitchburg B. Go.*156 Mass. 200; *Monte v. Wausau P. M. Co.*132 Wis. *304205, 211, 111 N. W. 1114, 1116; *Corrigan v. West Div. 8. Co.*133 Wis. YY, 113 N. W. 441; *Deinko v. Carbon Hill*C. *Co.*136 Eed. 162, 69 O. C. A. Y4; *Pennsylvania Co. v. Ebcmgh,*152 Ind. 531, 14 Am. & Eng. B. Cas. *s.*s. Y01, Y05; *Evansville & B. B. Co. v.*Henderson, 134 Ind. 636, 33 N. E. 1021, 1022; *O’Neal v. C. é I. C. Co.*132 Ind. 110, 31 N. E. 669.

*L. M.*Evert, attorney, and *P. II.*Martin, of counsel, for tbe respondent.

MaRshatx, J.

No contention is made but that tbe jury were warranted in finding tbat appellant’s track and roadbed were defective, causing the derailment of tbe engine tender and consequent necessity, under tbe circumstances, for respondent to jump from tbe moving car, and no substantial controversy as to tbe law governing tbe case.

Tbat respondent bad a right to assume tbe situation was reasonably safe for tbe performance of tbe operation in which be was engaged when injured, unless be knew to tbe contrary or would have known thereof bad be exercised ordinary care to observe tbe imperfections, and tbat such care required him to notice' and comprehend those things affecting bis personal safety which were so open and obvious as to naturally attract the attention of a person so circumstanced in case of bis paying ordinary heed to bis surroundings, and if under tbat rule he knew or ought to have known of tbe defects be must be regarded, since be voluntarily and without protest pursued bis employment, to have assumed tbe risk of tbe imperfections, is insisted upon on tbe one side and conceded, as tbe fact is, upon tbe other. Tbe law to tbat effect is very familiar. We are called upon to apply it to a great variety of situations, no two being precisely alike or sufficiently so as to make one such application develop a principle necessarily governing tbe other, at substantially every meeting here for tbe decision of eases.

*305Many expressions in decided cases exist which are often, and are now, referred to as applicable to facts materially different from those in mind at the time they originated; a much broader meaning being ascribed thereto than was intended or can fairly be done. We often see the one used, seemingly now supposed to have controlling significance, that if the employee has as good or better opportunity to know of the defects as the master he assumes the risk. That is good law, but it does not suggest that defects which are discoverable by the exercise of such care as is required to be exercised by the master are necessarily discoverable by such attention to his surroundings as an employee is bound to exercise.- Defects may be such as to be perfectly plain to the former and not attract the attention of the latter, since no duty of inspection rests with the servant; to turn aside from the acts of operating in order to specially look or search for defects, in the absence of some circumstance reasonably efficient to suggest existence thereof. The employee is only required to see and comprehend those imperfections which are so significant as to ordinarily attract the attention of a person under the same or similar circumstances, in the exercise of ordinary care, and whether the servant in any particular instance is chargeable with knowledge of conditions imperiling his personal safety is, generally, though of course not always, a jury question.

The foregoing need not be emphasized by the citation of authorities. Moreover it renders unnecessary any detailed consideration of the cases pressed upon our attention. It is sufficient to say in regard thereto that the facts now presented are so different from those in any one of such cases as to preclude the same from being regarded as controlling.

It is the opinion of the court that the evidence does not conclusively show that all of the imperfections which in the whole constituted the dangerous condition found by the jury were of that open, obvious nature which respondent, while *306engaged in bis work, would necessarily bave seen bad be exercised ordinary care, and the evidence on bis part is to tbe effect tbat be in fact did not observe tbem. It must be said, and is, substantially at least, conceded that there was evidence tending *to*show tbe existence of each of *the*found elements of tbe dangerous condition. One thereof is tbe insufficient elevation of tbe outer rail at tbe curve. It may well be, we are safe in saying, tbat such element would not, or might not, attract tbe attention of a trainman of experience in tbe exercise of ordinary care while engaged as respondent was before tbe accident, whatever might be bis grade of service. Tbat of itself was sufficient to warrant submitting the question of assumption of risk to the jury, even if some other of tbe detail imperfections was, or should bave been, known to respondent. This conclusion necessarily disposes of tbe claim tbat such 'assumption appears from tbe evidence as a matter of law, which claim is tbe principal one relied upon for a reversal, and we will, therefore, not further pursue tbe subject.

Tbe only other contention made is tbat tbe evidence establishes contributory negligence as matter of law. Tbat is largely, if not efficiently, met by tbe conclusion tbat tbe question of assumption of risk was properly submitted to tbe jury, and tbe refusal to disturb tbe .finding was not' error. There is ample evidence tending to show tbat, if respondent be not chargeable with knowledge of tbe dangerous condition of tbe track and roadbed, be was not guilty of want of ordinary care in causing tbe engine and cars to move as they did. Tbe first conclusion leaves no escape which we can see from tbe second.

It is true tbe evidence shows tbat respondent might, by. tbe use of tbe brakes, bave held tbe string of cars to be switched after they were pushed up the grade to tbe proper point, till tbe engine bad backed clear of tbe point of tbe switch, and then let tbem run down tbe grade by their own *307momentum, rendering it unnecessary for tbe engine to move toward and onto tbe curve at tbe great speed wbicb probably rendered operative tbe dangerous condition of tbe track and roadbed and cause tbe derailment. But there is other evidence tending to show that if tbe cars' bad been so held they would not thereafter have attained a sufficient speed by tbe mere force of gravity to pass fully in on tbe switch track and, therefore, in order to render tbe operation of making tbe drop switch successful, it was reasonably necessary, after tbe cars were pushed up tbe grade, to give them return motion at tbe rate of some four miles per hour, more or less, as was done, wbicb motion combined with tbe grade gave them such speed as to render it necessary for tbe engine to pass over tbe curve at a high rate of speed, in order to clear tbe point of tbe switch before they reached tbe same. So there was evidence tending to show that tbe whole operation wbicb was directed by respondent was not inconsistent with ordinary care in the absence of knowledge on bis part, actual or constructive, that tbe track and roadbed were unsuitable therefor.

Tbe result of tbe foregoing is that tbe judgment appealed from must be affirmed.

*By the CJourt.*— So ordered.