Johnson vs. Ashland Water Co.

to exist, the injury was caused by the negligence of a fellow servant, and the master is not liable.

A. E. Dixon, for the respondent.

TAYLOR, J. It is claimed by the learned counsel for the appellant that the complaint does not state a cause of action because it shows that the plaintiff was a mere volunteer in the work in which he was engaged at the time he received his injury. Under the allegations of the complaint, the plaintiff was engaged in the defendant's work at the request of the man in charge of the work; and, although it may be said that his employment was for a mere temporary purpose, and that the plaintiff was not expecting any pay for the work done, and in that sense the employment was voluntary, still, being in the defendant's employment at the request of its servant or foreman, he was not a trespasser, and he was, for the time being, the servant of the defendant, and entitled to the same protection as any other servant of the defendant, and probably subject to the same risks of injury from the negligence of his fellow-servants. This seems to be the rule established by the authorities, and is supported by considerations of justice. Elwell's Evans on Agency, 682; Wood on Mast. & Serv. 909, sec. 455; Degg v. M. R. Co. 1 Hurl. & N. 773; Potter v. Faulkner, 31 Law J. Q. B. 30; Warburton v. G. W. R. Co. L. R. 2 Exch. 30, 36 Law J. Exch. 9; Wiggett v. Fox, 11 Exch. 832; Abraham v. Reynolds, 6 Jur. (N. S.), 53; Flower v. P. R. Co. 69 Pa. St. 210; New Orleans, J. & G. N. R. Co. v. Harrison, 48 Miss. 112, 12 Am. Rep. 356; Street R. Co. v. Bolton, 43 Ohio St. 224, 226.

Conceding that the complaint shows that the plaintiff stood in the relation of a servant or employee of the defendant at the time the accident happened, does it state other facts which, if proved on the trial, would make the

Johnson vs. Ashland Water Co.

defendant responsible to him in damages for the injury received? We think this question should be answered in the affirmative. Laying out of view all other allegations in the complaint, the allegations contained in the last paragraph thereof are sufficient to make out his cause of action. If

he proves on the trial that his injury resulted from the defendant's failure to employ a sufficient number of men to do the work in a safe and proper manner, and by reason of such want of men he was injured, then he is prima facie entitled to recover.

The courts have uniformly held that it is a duty which the employer owes his servants, when set to do any particular work, that he shall provide a sufficient number of men to do the work in a reasonably safe manner. This duty is placed on the same ground which requires the employer to furnish safe implements and appliances for doing the work and a reasonably safe place in which the work is to be done. Wood, in his work on Railway Law (Vol. 3, p. 1487, sec. 381), says: "The term 'appliances' of the business embraces not only machinery, premises, and all the implements of every kind used in and about the business, but also the persons employed to operate them; and the master must furnish a sufficient number of persons competent to perform the labor safely; and, when the failure to employ a sufficient number of hands to perform the particular service is the proximate cause of the injury, the master is liable unless the servant may fairly be said to have assumed the risk incident thereto." This is a reasonable and just rule, and has been approved by all the courts in which the question has been raised, except in cases where the employee knew at the time that there was a want of sufficient help, and, notwithstanding such knowledge, entered into the employment. Flike v. B. & A. R. Co. 53 N. Y. 549, 554; Hayes v. W. R. Corp. 3 Cush. 270; Mad R. & L. E. R. Co. v.

Olson vs. The City of Chippewa Falls.

Barber, 5 Ohio St. 541, 563; Skipp v. E. C. R. Co. 9 Exch. 223; Booth v. B. & A. R. Co. 73 N. Y. 39.

The facts stated in the complaint negative any presumption that the plaintiff was aware of the fact that there was a want of sufficient men to perform the work safely, which he was suddenly called upon to assist in doing. It cannot be said, therefore, from the facts stated in the complaint that the plaintiff assumed the dangers incident to carrying on the work with an insufficient number of men. We think the complaint states a good cause of action, and the demurrer to the same was properly overruled.

By the Court. The order of the circuit court appealed from is affirmed, and the cause is remanded for further proceedings.

See note to this case in 37 N. W. Rep. 823.—REP.

OLSON, Respondent, vs. THE CITY OF CHIPPEWA FALLS, Ap

pellant.

April 2-April 17, 1888.

Municipal corporations: Defective street: Unguarded precipice: Unmanageable horses: Proximate cause of injury.

Horses ordinarily quiet and steady, attached to a wagon, were standing in a public street, when they became suddenly frightened and unmanageable and backed the wagon over a steep embankment within the limits of the street, which had negligently been left unguarded by the city, and the plaintiff, who was in the wagon, was injured. Held, that in the absence of contributory negligence the city is liable for the injury. The frightened and unmanageable condition of the horses was not such an independent cause of the injury as to prevent a recovery.

APPEAL from the Circuit Court for Chippewa County. Action to recover damages for personal injuries and the loss of personal property sustained by reason of the defect

Olson vs. The City of Chippewa Falls.

ive and unsafe condition of a highway in defendant city. The facts will sufficiently appear from the opinion.

At the close of the trial the jury returned a general verdict in favor of the plaintiff, assessing her damages at $650; also a special verdict as follows: (1) "Question. Was the highway at the place of the accident in a condition of insufficiency? Answer. Yes. (2) Q. Was Mr. Walker in the exercise of ordinary care in leaving the team in front of the mill, in charge of the plaintiff, in the manner and under the circumstances he did? A. Yes. (3) Q. Did the team, while in the plaintiff's charge, become unmanageable? A. Yes. (4) Q. If you answer 'yes' to the last above question, did the team become more than momentarily unmanageable? A. No. (5) Q. Did the plaintiff exercise ordinary care by making proper efforts to arrest the backing of the team? A. Yes."

From the judgment entered on the verdict, in favor of the plaintiff, the defendant appeals.

For the appellant there was a brief signed by J. A. Anderson, city attorney, and oral argument by J. J. Jenkins. They contended that the fright and unmanageable condition of the team constituted the primary cause of the accident, for which the city would be in nowise responsible. Houfe v. Fulton, 29 Wis. 296; Kelley v. Fond du Lac, 31 id. 179; Moore v. Abbot, 32 Me. 46; Taylor v. Woburn, 130 Mass. 499. It being established that the unmanageableness of the team was not in any manner chargeable to the defendant, there can be no recovery even though the driver was in no fault. Marble v. Worcester, 4 Gray, 401-2; Murdock v. Warwick, id. 180; Rowell v. Lowell, 7 id. 102; Titus v. Northbridge, 97 Mass. 264; Houfe v. Fulton, 29 Wis. 305-7; Jackson v. Bellevieu, 30 id. 258; May v. Princeton, 11 Met. 444; Kelley v. Fond du Lac, 31 Wis. 179. It is the duty of the traveler to remain in the traveled portion of the highway, and if he leaves the same and injury ensues he cannot

Olson vs. The City of Chippewa Falls.

recover. Kelley v. Fond du Lac, 21 Wis. 186–7; Sykes v. Pawlet, 43 Vt. 446. Where the plaintiff's unskilfulness or negligence primarily contributes to the injury, a recovery is barred. May v. Princeton, 11 Met. 442; Delaney v. M. & St. P. R. Co. 33 Wis. 75; Davis v. Dudley, 4 Allen, 560; Otis v. Janesville, 47 Wis. 423; Cronin v. Delavan, 50 id. 375; Rowell v. Lowell, 7 Gray, 100; Stickney v. Salem, 3 Allen, 374. And the question of want of care and unskilfulness is not one for the jury when it is plainly the cause of the accident. Achtenhagen v. Watertown, 18 Wis. 331; Hill v. New Haven, 37 Vt. 501; Barber v. Essex, 27 id. 62; Teipel v. Hilsendegen, 44 Mich. 461; Pzolla v. M. C. R. Co. 54 id. 273.

Arthur Gough, for the respondent, argued, among other things, that the highway was, as found by the jury, “in a condition of insufficiency Palmer v. Andover, 2 Cush. 600; Hayden v. Attleborough, 7 Gray, 338; Pittston v. Hart, 89 Pa. St. 389; Stevens v. Boxford, 10 Allen, 25; Chicago v. Gallagher, 44 Ill. 295; Wilson v. Atlanta, 60 Ga. 473; Alger v. Lowell, 3 Allen, 402; Adams v. Natick, 13 id. 429; Davis v. Hill, 41 N. H. 329; Prideaux v. Mineral Point, 43 Wis. 514, 523; Wheeler v. Westport, 30 id. 392; Hart v. Red Cedar, 63 id. 634, 641. To the point that there was no negligence on the part of the plaintiff, and that the question of negligence was for the jury, he cited Britton v. Cummington, 107 Mass. 347; Kenney v. Cohoes, 100 N. Y. 623; Black v. Brooklyn City R. Co. 108 N. Y. 640; Hull v. Kansas City, 54 Mo. 598; Cobb v. Standish, 14 Me. 198; Griggs v. Fleckenstein, 14 Minn. 81; Albert v. B. S. R. Co. 2 Daly, 389; Myers v. I. & St. L. R. Co. 113 Ill. 386; Pool v. C., M. & St. P. R. Co. 56 Wis. 227; Stilling v. Thorp, 54 id. 528.

ORTON, J. The facts of this case appear to be substantially and briefly these: Prairie street of said city passes over a bridge that spans quite a large stream of water,