74 N.W. 91 (Wis. 1898), Borden v. Daisy Roller-Mill Co.

• Citation: 74 N.W. 91, 98 Wis. 407
• Opinion Judge: ROUJET D. MARSHALL, J.
• Party Name: BORDEN, Respondent, v. DAISY ROLLER MILL COMPANY, Appellant
• Attorney: For the appellant there was a brief by Ross, Dwyer & Hanitch, and oral argument by W. D. Dwyer. For the respondent there was a brief by Crownhart, Owen & Foley, and oral argument by W. R. Foley.
• Case Date: February 08, 1898
• Court: Supreme Court of Wisconsin

Page 91

74 N.W. 91 (Wis. 1898)

98 Wis. 407

BORDEN, Respondent,

v.

DAISY ROLLER MILL COMPANY, Appellant

Supreme Court of Wisconsin

February 8, 1898

Argued: January 13, 1898

APPEAL from a judgment of the superior court of Douglas county: CHARLES SMITH, Judge. Reversed.

Action for the recovery of compensation for personal injuries alleged to have been received by plaintiff while in the employ of defendant, by reason of a failure of duty on the part of the latter in respect to furnishing plaintiff with a reasonably safe ladder with which to do his work.

The evidence showed, without dispute, that plaintiff had worked as a millwright in defendant's flour mill for several months before the injury; that he was a person of large experience in such work and very familiar with the use of ladders of various kinds in and about millwright work; that at the time in question he was putting up some spouts or conductors, that required him to work on a gallery on which were located purifiers in operation; that for the purpose of reaching the point where the work was to be done, he was obliged to use a short ladder; that he found one standing upright against one of the machines, took and immediately placed it in position, and ascended it with a spout in his hand to do his work; and that while so engaged the ladder suddenly slipped on the floor, causing him to fall and entangle one of his feet in the belt on one of the machines, by reason of which one of his legs was broken and he was otherwise injured. The alleged defect was want of spikes in the ladder to prevent its slipping on the floor.

At the close of the evidence there was a motion to direct a verdict for defendant, which was denied. The court charged the jury that the ladder was defective, as a matter of law, for want of spikes to prevent its slipping on the floor, and that if plaintiff, in the exercise of ordinary care, should have discovered such defects, he could not recover; otherwise that he was entitled to a verdict for compensation for his injuries. A verdict was rendered for plaintiff. Defendant's counsel moved the court to set the verdict aside and grant a new trial, which was denied. Judgment was thereafter entered in plaintiff's favor, and defendant appealed therefrom on exceptions duly taken.

Judgment reversed and cause remanded for new trial.

For the appellant there was a brief by Ross, Dwyer & Hanitch, and oral argument by W. D. Dwyer.

For the respondent there was a brief by Crownhart, Owen & Foley, and oral argument by W. R. Foley.

OPINION

[98 Wis. 408] ROUJET D. MARSHALL, J.

It is only when the evidence, and...