Andrzejewski v. Nw. Fuel Co.

• Decision Date: 17 June 1914
• Citation: 148 N.W. 37,158 Wis. 170
• Parties: ANDRZEJEWSKI v. NORTHWESTERN FUEL CO.
• Court: Wisconsin Supreme Court

158 Wis. 170

148 N.W. 37

ANDRZEJEWSKI

v.NORTHWESTERN FUEL CO.^d1

Supreme Court of Wisconsin.

June 17, 1914.

Appeal from a judgment of the circuit court for Douglas County; Frank A. Ross Circuit Judge. Affirmed in part and reversed in part.

Action to recover compensation for a personal injury, causing, as claimed, the death of plaintiff's intestate. The complaint contained two causes of action,--one for damages to the deceased and one for damages to his surviving mother.

The intestate, December 7th, 1911, was an employé of defendant. He was required to operate the levers of a scraping machine so as to cause such machine to do the work of moving coal on the floor of a coal dock. His post was on a platform above the surface of the dock. The apparatus consisted of a combination of parts, including cables, drums, friction appliances, eccentrics, movable hubs and two levers four or five feet long. The drums and operating connections, including the two levers, were located on the platform. The levers, except as otherwise placed by the hands of the operator, stood perpendicular and a short distance apart. The operator was required to grasp one lever in each hand and, by properly manipulating them, cause the scraper on the floor to work as desired. When the power was on, the operator, in order to stop the machine, had to cross the levers by pressing the right hand one to the left and the left hand one to the right. While they were in such position and not held by hand they were liable to, unexpectedly, return to an upright position with considerable force. The claim of plaintiff was in harmony with this, and that deceased was obliged to stand in such a position that, in case of the levers flying back in manner aforesaid, they were liable to strike him injuriously in the head; that defendant negligently placed him at work without warning him of such danger and was negligent in not so equipping the levers that, when crossed to stop the machine, they would so remain until released by the operator. Plaintiff further claimed that, on the occasion in question, while deceased was performing his duties as he had been instructed to do, there was an unexpected flying back of the levers whereby he was struck in the head and so severely injured that he died some six weeks thereafter, leaving surviving, a mother to whose support he was accustomed to contribute, but no father, wife or children. The matters referred to and such others were alleged, necessary to a cause of action to recover compensation for damages suffered by deceased, and damages caused to his said surviving mother. All allegations as to fault of defendant and as to the death having been caused by the levers flying up and striking were put in issue by the answer.

There was evidence, as the trial court viewed the matter, proving, or tending to prove, these evidentiary circumstances: The deceased, up to the time it is claimed the injury occurred, was, substantially, a well man. His position in performing his duties was such that a sudden flying back of the levers was liable to strike him in the head if he was not on his guard in respect thereto. He was injured in the head at the time alleged. There is no circumstance to account therefor except the one claimed. The levers were liable to so perform. The deceased was not warned of such liability. About five o'clock in the afternoon of the day the injury is claimed to have happened, the deceased was at his post and apparently in a normal condition. A few minutes later, at a point some sixty feet from his post, he was seen walking therefrom with his hand to his head and heard to exclaim that he had been hurt by the levers. The exclamation was made to a person whom he passed. Soon thereafter, and on the succeeding night his face was observed to be swollen. From that time until the difficulty was very pronounced he did not act natural. He returned to the dock for a short time on one or two occasions after the alleged injury. After his death there was an autopsy, disclosing a fatal blood clot on his brain caused by external violence. The injury was of several weeks standing. The levers were of gas pipe and, in case of flying up and striking the operator's head, were quite likely to injure him. He was required, or was liable in the course of his work, to take such a position that his head would be in the danger zone of the levers. There was no precaution by defendant to guard against liability of the levers so flying up after having been crossed and the hands of the operator removed therefrom. It was known to defendant, or ought reasonably to have been known to it, that the levers were liable to fly up. The deceased was an illegitimate child. He was thirty-eight years of age when he died. He left no wife nor lineal descendant. The mother was then about fifty-six years of age and in good health. She came to America when he was about eight years of age. When he was about thirteen years of age she paid his passage to this country. He lived with her thereafter for a few years and then permanently left her home. On some occasions he gave her small amounts of money. She had a husband when he came to live with her in this country. Her situation, at the time of the trial, was this: She was living with her husband who was in rather poor health. He was only able to do light work. Otherwise, all members of the family, five sons and three daughters, were in good health. All were adults but two. Two of the daughters and two of the sons were married and had homes of their own. One son, about twenty-eight years of age, another about twenty-one, a third about twenty and a daughter about eighteen, resided at home. The family lived in Duluth. The deceased had no property when he died. He had been accustomed to indulge in strong drink quite freely for some time before that event. When he had money he was liable to drink heavily and on such occasions his face was liable to become much swollen.

Counsel for defendant requested the court to instruct the jury as to loss sustained by the mother by the death of the deceased: 1st, that no such loss was recoverable; 2d, that no such loss was recoverable unless the jury were satisfied to a reasonable certainty that, had the accident not occurred, the deceased would have lived and, during his life time, would have rendered pecuniary assistance to the mother and only to the extent of such assistance. The two requests were combined and given in this form:

“You are instructed that plaintiff is not entitled to recover any damages in this cause because of the pecuniary loss claimed resulting from the death of the deceased. Unless you find from the evidence to a reasonable certainty that the deceased would have lived had it not been for the injury claimed to have been received on defendant's dock December 7th, 1911 and that he would during his lifetime have contributed to the support and maintenance of the plaintiff, you are not permitted to award any damages in this case on account of his death. In no event are you permitted to award damages to the plaintiff in this case for the death of the deceased for any greater amount of money than you find from the evidence to a reasonable certainty he would have lived longer than he did. You are to consider in determining what if any damages plaintiff has sustained, the probability or lack of probability that the deceased would have remarried and you are instructed that if the deceased had lived and remarried, the plaintiff would not then be entitled to any support or contribution from him or claimed damages after his death.”

The jury found specially to this effect:

The deceased was injured by the flying back of the levers as claimed. Such injury was the proximate cause of his death. The levers were so adjusted that when properly operated they were liable to unexpectedly fly up, rendering them not reasonably safe for the person required to operate them. Such unsafe condition was the proximate cause of the injury. The deceased was not guilty of any want of ordinary care proximately producing his injury. $540 is required to compensate for the loss sustained by the deceased. $1,500 is required to compensate plaintiff (his mother) for the pecuniary loss she sustained.

Judgment was awarded for both the loss to the deceased and the loss to the mother as well.

W. P. Crawford, of Superior, for appellant.

Hanitch & Hartley, of Superior, for responddent.

MARSHALL, J.

Questions raised by counsel which are not referred to in what follows have been examined and passed as inconsequential because either not involving any error at all, or any of prejudicial character.

[1] Minor matters which constitute the res gestæ of a major subject are things so closely connected therewith as to be substantially involved therein and to explain or illustrate it. Andrews v. United States Casualty Co., 154 Wis. 82, 142 N. W. 487. It follows, as counsel for appellant contends, that there must be a material major circumstance in order that there be evidentiary res gestæ, and that the latter is not, primarily, competent to prove the former.

[2] Here, contrary to the contention of counsel, the substructive element essential to give rise to illustrative features appeared. It was an injury, inflicted by physical violence, to the head of the deceased, resulting in his death. That was, clearly, the principal fact within the rule stated. Insurance Co. v. Mosley, 8 Wall. 397, 19 L. Ed. 437. The circumstantial evidence of that was, in view of the expert evidence, quite satisfactory. There were physical indications of an injury to the head of the deceased which were first noticeable several weeks before his death and were progressive in manifestation up to the happening of that event. The autopsy which followed showed a recent rupture of a blood vessel under the table of the skull, the escape of blood, the formation of a blood clot on the brain and consequent complications, eventuating in...