#### Meo, Respondent, vs. Chicago *&*Northwestern Railway Company, Appellant.

*January 6*

March *9, 1909.*

*Railroads: Injury to employee: Negligence of co-employee: “Rislo peculiar to the operation of railroads.”*

While a section gang, including plaintiff, was engaged in unloading, from a handcar standing on a main track, old rails which they had removed from the roadbed some distance away and had transported on the car to the place of unloading, plaintiff was injured by a rail which was suddenly dropped or thrown to the ground by his fellow-servants. *Held,*that the injury was one arising “from a risk or hazard peculiar to the operation of railroads,-’ within the meaning of sec. 1816, Stats. (1898), as amended by ch. 448, Laws of 1903, making a railroad company liable for such injuries even though caused by negligence of fellow-servants.

Appeal from a judgment of tbe circuit court for Kenosha county: E. B. Belden, Circuit Judge.

*Affirmed.*

Action for personal injuries. A section gang, of which plaintiff was a member, having been engaged in replacing old rails at some distance south of Kenosha, loaded the old rails upon a handcar and transported them to Kenosha, and, with the handcar standing upon the main track, were engaged in removing the rails to the ground; plaintiff standing astride of the west rail of the railroad track in order to lift and move the rail in question. The latter was suddenly dropped or thrown to the ground, whether with or without the customary command by the foreman is in dispute. It fell upon the plaintiff’s foot, causing injury. The jury found (1) that the defendant’s foreman did not negligently fail to warn the plaintiff that the rail was about to be thrown; (2) defendant did not negligently fail to furnish sufficient number of men to properly handle the rail; (3) plaintiff’s injury was caused by the negligence of his fellow-servants in handling the rail in question; (4) such negligence was the proximate *341cause of tbe injury; (5) no contributory negligence; and (6) damages. After motions for. tbe amendment of tbe verdict and judgment for tbe defendant tbe court entered judgment for tbe plaintiff, from wbieb tbe defendant appeals.

Tbe cause was submitted for tbe appellant on tbe briefs of *Edward M. Irlyzer.*

*M. G. O’Donnell,*for the respondent

Dodge, J.

Tb'e first contention to tbe effect that no negligence on tbe part of plaintiff’s fellow-servants was shown must be overruled. Tbe whole situation was before tbe jury, including plaintiff’s position of peril. Tbe question whether the men dropped the rail before tbe usual command bad been given them was in conflict, and tbe inference whether tbe state of facts as found by the jury was such as to constitute negligence was one about which we think reasonable minds might differ.

It is urged that the injury is not within tbe description of sec. 1816, Stats. (1898), as amended by ch. 448, Laws of 1903, then in force, namely, one arising from a risk or hazard peculiar to tbe operation of railroads. We can discover no distinction in that regard .from tbe situation presented in *Hardt v. C., M. & St. P. R. Co.*130 Wis. 512, 522, 110 N. W. 427, and consider tbe discussion in that case entirely applicable to this. Tbe woitk in progress was transportation, one of the distinguishing characteristics of railroad business. *Chicago, K. &*W. *R. Co. v. Pontius,*157 U. S. 209, 15 Sup. Ct. 585. The circumstances under which it was done, with necessity for baste from threat of frequent passing trains, and tbe embarrassment of standing ground by rails and ties, bring it fully within any fair meaning of tbe words of tbe statute.

*By the Gourt.*— Judgment affirmed.

Marshall, J., dissents.