Adams v. Bucyrus Co.

• Decision Date: 18 November 1913
• Citation: 155 Wis. 70,143 N.W. 1027
• Parties: ADAMS v. BUCYRUS CO.
• Court: Wisconsin Supreme Court

155 Wis. 70

143 N.W. 1027

ADAMS

v.BUCYRUS CO.

Supreme Court of Wisconsin.

Nov. 18, 1913.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by William J. Adams against the Bucyrus Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Timlin, J., dissenting.

Personal injuries. The plaintiff, a millwright, nearly 40 years of age, was in the employ of defendant at its large manufacturing plant at South Milwaukee, and was very seriously injured February 3, 1911, by reason of a large roller falling upon him. The roller was in the shape of a solid wheel, 42 inches in diameter, 15 1/2 inches thick, made of semisteel and weighing nearly 4,000 pounds. The roller was a part of the machinery of a so-called sand mill or sand mixer, which was situated in the foundry annex of the defendant's plant and was used for mixing molding sand. There are two sand mixers in the annex, and each contains two of these large steel rolls, which revolve in a large pan, eight feet in diameter, into which the sand is thrown. The pan revolves horizontally, and the wheels vertically, and the sand is thus thoroughly mixed. The rolls revolve on a shaft which runs through the middle, like the axle of a wheel, and the aperture through which this shaft runs is about six inches in diameter. The rolls become worn in time, and sometimes the metal bushings in the aperture, which serve to reduce the aperture to the size of the shaft, have to be replaced. Two days before the accident Adams with his helper, one Ranthum, was directed by Beck (his foreman) to put new bushings in the apertures of the rolls belonging to one of the sand mixers. The rolls had then been removed from the machine, and were standing on their 15-inch rims or edges on the sand floor of the annex near the mixer. Plaintiff and Ranthum drove in bushings on one side of each of the rolls with a 16-pound sledge. The bushings were bands of iron which fitted closely in the aperture and reduced the size thereof from about six inches to about three inches, and were about six inches in length. They fitted very closely, and it was necessary to spend some time driving in each bushing, a block of wood being placed against the outer end of the bushing and struck repeatedly by the sledge. It took about four hours to put the bushings in one side of each roller, and plaintiff then tried to fit the bushings into the apertures on the other sides of the rollers, and found them too small. Plaintiff informed Beck, the foreman, of the fact, and gave Beck the measurements of the hole, and Beck promised to have larger ones made. No work was done on the rollers the next day. In the evening of the last-named day one Pfeiffer, who was a sand mixer on the night force, found the rollers in his way as he wheeled sand to the other sand machine, and he asked the man who operated the electric crane to move them away with the crane, which he did, placing them four or five feet to the south of their former positions, one being left about two feet from the concrete foundation of an iron column on the east side of the annex, and the other four or five feet west thereof, and both standing on their rims or edges, as before. On the following day, at about 9:30 a. m., plaintiff and Ranthum were sent back to complete their work on the rollers with the new bushings. They drove one of the new bushings about two inches into one of the rollers, when it seemed to hit a burr and stopped. Ranthum then went on the other side and drove the bushing out. Plaintiff got down on his hands and knees with a candle and looked in the hole to see what the obstruction was; while he was doing this Ranthum (as he testifies) took the other bushing and tried it in the aperture of the roller which stood near the column, and tapped it lightly with the machinist's hammer, whereupon (according to Ranthum's testimony) the roll rolled a little northward and tipped over westward onto the plaintiff as he was kneeling, thus crushing him to the ground and inflicting very serious and permanent injuries. No one saw the roll fall except Ranthum.

The jury returned the following special verdict:

“(1) Was the plaintiff injured on February 3, 1911, by an iron roller falling upon him in the foundry annex of the defendant? Answered by the court: Yes.

(2) Was the place where the plaintiff was at work when injured reasonably safe, considering the condition of the material underneath the roller, which fell on him, the position and character of that roller, and the nature of the work in hand? Answer: No.

(3) If you answer the second question ‘No,’ then answer this question: Did the defendant know in time to have prevented the injury to plaintiff that the place where he was at work was not reasonably safe? Answer: Yes.

(4) If you answer the third question ‘No,’ then answer this question: Ought the defendant, in the exercise of ordinary care, to have known in time to have prevented the injury to plaintiff that the place where he was at work was not reasonably safe? Answer: Yes.

(5) If you answer the second question ‘No,’ then answer this question: Was such failure to provide a reasonably safe place for the plaintiff to work in the proximate cause of his injury? Answer: Yes.

(6) If you answer the second question ‘No,’ then answer this question: Ought the plaintiff, in the exercise of ordinary care, to have known that the place in which he was working at the time of the injury was not reasonably safe? Answer: No.

(7) Did any want of ordinary care on the part of the plaintiff proximately contribute to produce his injuries? Answer: No.

(8) Was Emil Ranthum guilty of negligence in his attempting to put the bushing in the roller that fell on the plaintiff? Answer: No.

(9) If you answer the eighth question ‘Yes,’ then answer this question: Was such negligence on the part of Emil Ranthum the proximate cause of plaintiff's injury? Answer: No.

(10) What sum will reasonably compensate the plaintiff for the damage sustained by him as a result of his injury? Answer: $18,300.”

The court overruled defendant's motions to change certain answers and for judgment, and entered judgment on the verdict for the plaintiff, from which judgment defendant appeals.

Doe & Ballhorn, of Milwaukee (W. C. Quarles, of Milwaukee, of counsel), for appellant.

Stover v. Stover, of Milwaukee, for respondent.

WINSLOW, C. J. (after stating the facts as above).

[1] In this case the plaintiff called as adverse witnesses a number of the defendant's employés, including Ranthum, the plaintiff's helper, and examined them fully as to the situation and the circumstances surrounding the accident. Ranthum gave his story of the falling of the roller at length. The trial took place in November, 1912, and the trial judge ruled in accordance with the rule apparently laid down in O'Day v. Meyers, 147 Wis. 549, 133 N. W. 605, that the defendant could not cross-examine Ranthum or any of the other witnesses who were employés of the defendant and were called as adverse witnesses. This was error under the decision in Guse v. P. & M. M. Co., 151 Wis. 400, 139 N. W. 195, which case, however, was not decided until December, 1912. In this latter case it was held that the defendant has a right to re-examine such a witness immediately after the close of the plaintiff's examination as to all matters tending to explainor qualify the testimony already given, but not as to defensive matters not brought out by plaintiff's counsel, and may ask the witness questions proper for the purpose of impeachment, upon stating that he does not intend thereafter to make the witness his own.

[2] The question is whether such error was reversible error; i. e., does it appear that it affected the substantial rights of the appellant (St. 1911, § 3072m), or, to express the thought in other language, does it appear affirmatively that the error not only harmed the appellant, but harmed him so materially that it might probably have changed the result of the case? Koepp v. N. E. & S. Co., 151 Wis. 302, 139 N. W. 179. In several cases this precise error has been held nonprejudicial under the circumstances present in those particular cases. Jakopac v. Newport M. Co., 153 Wis. 176, 140 N. W. 1060;Baermann v. C. & M. E. R. Co., 153 Wis. 235, 140 N. W. 1119;Nickels v. Manitowoc S. & D. D. Co., 153 Wis. 298, 141 N. W. 269.

We are unable, however, to reach that conclusion in the present case, at least in respect to the examination of the witness Ranthum, who was the only eyewitness of the fall of the roll. The plaintiff himself did not know nor see what struck him. So the testimony of Ranthum was of the greatest...