Sufferling v. Heyl

• Decision Date: 11 May 1909
• Citation: 139 Wis. 510,121 N.W. 251
• Court: Wisconsin Supreme Court
• Parties: SUFFERLING v. HEYL & PATTERSON.

139 Wis. 510

121 N.W. 251

SUFFERLING

v.HEYL & PATTERSON.

Supreme Court of Wisconsin.

May 11, 1909.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Robert Sufferling against Heyl & Patterson, a corporation. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action to recover for a personal injury.

In brief, plaintiff's claim was this: Defendant's servants negligently used a light hoisting apparatus--suitable only for lifting light articles, to elevate a heavy timber to the top of a building which such servants, together with plaintiff as an employé of a subcontractor of defendant, were engaged in erecting. The apparatus consisted of a scantling, extending out a few feet from the edge of the roof, to which a pulley and block, threaded with a hoisting rope with proper connections, was attached. The scantling was too weak and too insecurely braced to be suitable to sustain such a heavy weight as the one in question. Just as the timber was about to clear the ground plaintiff, in the due course of his work, stepped out of the building nearly under the overhanging scantling without realizing the condition aforesaid or being guilty of any want of ordinary care in that regard, when the scantling broke and fell, a piece thereof striking plaintiff and severely injuring him. The defendant knew, or ought to have known in the exercise of ordinary care, that the hoist as erected, was entirely unsuitable for the use to which it was put and was liable, in so being used, to break, as it did, and injure persons who might, in the exercise of ordinary care, be, rightfully, in the pathway of falling pieces or parts of the apparatus, or articles in the process of being lifted thereby, and be injured. All facts upon which negligence was predicated were duly put in issue.

There was evidence to the effect that plaintiff was injured in the manner claimed; that he was, as alleged, at the time the hoist broke, in the regular performance of his duty as an employé of defendant's subcontractor; and that the hoist while being operated by defendant's servants broke, as claimed, with the consequences alleged. There was evidence tending to show that the hoist was not designed for any such heavy work as that in course at the time of the accident; that, formerly, there had been one in place suitable for such work but that it had been replaced by the subcontractors, a few days before the accident, by the lighter one because of the other being in the way, and that such lighter one was used at such time as the heavier one had been, though it was entirely unsuitable for the heavy work; that plaintiff did not know of the condition so created at the time the hoist broke; that he walked out of the building under, or nearly under, the projecting joist just as two men on the floor above pulled on the rope so as to raise the timber from the ground, when the supporting scantling broke and the piece came down upon him, as alleged, fracturing his skull and otherwise injuring him.

Counsel for defendant unsuccessfully moved the court to submit as parts of a special verdict, several questions covering the subject of whether the insecure hoist was erected in place of the secure one, to the knowledge of defendant's representative in general charge of the work and whether such representative had knowledge, actual or constructive, of the insufficiency.

The jury found substantially, as follows: Defendant, in prosecuting the heavy work with the hoist, failed to use ordinary care. Such failure was the proximate cause of the injury. Defendant, in the exercise of ordinary care, ought reasonably to have foreseen that some one might probably be injured as a result of the hoist being used as it was at the time of the accident. Plaintiff did not assume the risk of being injured by the insecure hoist. He was not guilty of contributory negligence. He was damaged to the extent of $2,000.Doe & Ballhorn, for appellant.

Rubin & Zabel, for respondent.

MARSHALL, J. (after stating the facts as above).

Complaints made respecting rulings on evidence have received the attention, which, in the judgment of the court, they merit without our discovering any sufficient ground for disturbing the judgment. A reference to such rulings is omitted because no one of them seems to call for a decision respecting it of sufficient importance as a precedent to require discussion with references and a statement of reasons on principle or authority, or both, why the ruling was either not erroneous, or, if otherwise, not harmful.

The point is made that the claim of respondent in the complaint was that there was negligence in putting up and leaving in place for use the unsuitable hoist, while, on the trial, recovery was sought solely on the ground of negligence in using an unsuitable hoist by appellant's servants with its knowledge, actual or constructive, thereof; that there was a fatal variance between the complaint and the evidence. Without conceding that, under the circumstances, there was such a variance, if the situation be as counsel suggest, it is the opinion of the court that the contention is based on a misconception of the complaint. It expressly, or by reasonable inference, states the ground of negligence counsel suggest was relied upon at the trial.

The claim is made that there was no evidence that appellant knew of the unsuitable hoist having been substituted for the suitable one and, therefore, if there was any negligence on the occasion in question, it was mere negligence of defendant's employés and, notwithstanding they were servants of the general contractor and plaintiff was a servant of an independent subcontractor, all were fellow servants, and, therefore, the motion for a nonsuit should have been granted. That presents the question of whether servants of a general contractor and those of his independent subcontractor, all being engaged in executing a particular enterprise, as the construction of or repair of a building, are fellow servants within the meaning of that term as used in the law of negligence. The counsel's deduction from the fellow-servant law seems to be illogical. It...