Badger v. Mills

• Decision Date: 07 April 1897
• Citation: 95 Wis. 599,70 N.W. 687
• Parties: BADGER v. JANESVILLE COTTON MILLS.
• Court: Wisconsin Supreme Court

95 Wis. 599

70 N.W. 687

BADGER

v.JANESVILLE COTTON MILLS.

Supreme Court of Wisconsin.

April 7, 1897.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by Arthur E. Badger against the Janesville Cotton Mills. There was a nonsuit at the close of all the evidence, and plaintiff appeals. Affirmed.

This is an action for damages alleged to have been caused by actionable negligence on the part of the defendant, in that it failed to furnish plaintiff, one of its employés, suitable appliances with which to do his work. The allegations of the complaint are to the effect that plaintiff, on the 12th day of November, 1894, was in the employ of the defendant in a cotton mill operated by such defendant in the city of Janesville, Wis.; that his duty was to repair and keep in order, among other things, the belts running to and operating the looms; that such belts ran from driving pulleys on shafts suspended on hangers from 10 to 12 feet above the floor; that, in the performance of his duty, it became necessary from time to time for him to reach the shafts and pulleys by means of a ladder which defendant furnished for that purpose; that such ladder was unsafe, defective, and unsuitable for such use, so as to be liable to break from the weight of a person upon it; that on the day named, while in the performance of his duty, with due care, plaintiff ascended the ladder, to remove a belt which had become misplaced and wound up around the shaft, and that while so doing, by reason of the defective condition of the ladder, it broke, letting the plaintiff fall against the shaft and a pulley thereon, whereby his arm was caught in the shaft and pulley, and broken, torn, and mangled so that it became necessary to amputate the same at the shoulder. Damages were claimed in the sum of $20,000. Defendant answered, denying that the ladder was unsafe or unsuitable for the use of plaintiff in the performance of his work, and alleging that it was in every way safe and suitable for such purpose, and that plaintiff's injury was caused by his own negligence. At the close of plaintiff's evidence, defendant's counsel moved the court for a nonsuit, which motion was denied. At the close of all the evidence, defendant's counsel moved the court to direct a verdict in defendant's favor, and thereupon the motion for the nonsuit previously made was granted, and plaintiff's counsel excepted thereto. Judgment was thereafter entered, dismissing the complaint, with costs, from which judgment this appeal was taken.Fethers, Jeffris & Fifield, for appellant.

Sutherland & Nolan, for respondent.

MARSHALL, J. (after stating the facts).

Notwithstanding the nonsuit was granted at the close of defendant's evidence, instead of when the motion was made, at the close of plaintiff's evidence, the rule still applies that it was justifiable only on the ground that the latter evidence, under the most favorable construction it would reasonably bear, including all reasonable inferences therefrom, would support a verdict in plaintiff's favor. Hence the initial question is, looking only to plaintiff's evidence in the most favorable light, would it support a verdict in his favor? And that turns mainly on whether there was any evidence to establish the contention that defendant failed to perform its duty in respect to furnishing a reasonably safe ladder for plaintiff's use. If not, the question of whether plaintiff's evidence showed that he was guilty of contributory negligence, as a matter of law, need not be considered. The alleged defective ladder was about 12 feet long, with hooks at the top ends of the side pieces,...