Behling v. Wis. Bridge & Iron Co.

• Decision Date: 17 November 1914
• Citation: 158 Wis. 584,149 N.W. 484
• Court: Wisconsin Supreme Court
• Parties: BEHLING v. WISCONSIN BRIDGE & IRON CO.

158 Wis. 584

149 N.W. 484

BEHLING

v.WISCONSIN BRIDGE & IRON CO.

Supreme Court of Wisconsin.

Nov. 17, 1914.

Appeal from the Judgment of the Circuit Court for Milwaukee County; William J. Turner, Circuit Judge. Affirmed.

This is an action to recover compensation for a personal injury which happened to plaintiff August 24, 1911, while he was performing his duties as an employee of defendant, which was carrying on a manufacturing business in the city of Milwaukee, Wisconsin.

In defendant's mill yard there was a heavy travelling crane, the entire appliance conditioned as follows: There were trestles about 16 feet high extending east and west in a mill yard for a distance of about 280 feet. A crane car ran on rails at the top of the trestles. The supporting trusses were about 30 feet apart. There was an iron air feed pipe, extending from end to end under the trestle top, about two and a half feet therefrom and the same above parallel angle iron connections between the sets of truss posts. On the south side of the trusses there were posts reaching several feet above the top of the trestle. To such posts two sets of heavily charged electric wires were allotted, the upper set being feed wires for operating the appliance and lower set for lighting wires, the latter being a short distance above the top of the trestle, and sagging more or less according to temperature, and sometimes too near the top of the trestle. The crane carriage was carried below the trestle top, leaving but a few inches clearance of the south trestle. There were windows in such carriage, affording the crane operator facility for a clear view along the feed pipe. The carriage had a hook suspended from it for attaching to loads to be conveyed. The carriage traveled frequently one way or the other and at a speed of about three and one-half miles per hour. It could be easily and quickly stopped by the operator. He had full control to start or stop it, or operate it slowly or at maximum speed, by manipulation of controlling levers. It was his business to watch the man stationed to operate the hook and obey his signals. The movement of the machinery caused considerable noise and trembling of the trestle; but it was much confused with or rendered indistinguishable by the noise of nearby machinery. Plaintiff was required to mount the trestle, stand on the angle irons and paint the feed pipe. He could have done that and kept out of the pathway of the crane by going along the south side of the south trestle; but not by standing on the inner side and to the north. Plaintiff first painted west, moving backward and standing on the safe side of the trestle. He was blind in the left eye. After completing his work, moving west, he turned and painted the other way, with his blind eye toward the pipe. In this movement he was on the north and inner side of the trestle. He suspended his paint pail from the feed pipe, took hold of the trestle with his left hand and painted with his right. Had he taken the place of safety as to the crane carriage, he would have been near to the electric wires; just how near was one of the litigated questions. He omitted to take such position, as he claimed fearing the danger from proximity of such wires. They were insulated, but the protection was liable to be inefficient and he was afraid of it, as he claimed.

The testimony showed, or tended to show the foregoing and this: Plaintiff was perfectly familiar with the operations of the crane. He knew he could accomplish his work and keep in a place of safety, but by painting as he did, that he had to give way to the crane when it came along or would probably be injured. There was a conflict as to whether the crane passed him one or two times before he was injured, he being at such times on the safe side of the trestle. The crane man and hook man testified in the affirmative and to the effect that they had no reason to expect plaintiff would take the place of danger. Had he faced the crane he would have seen it in time to have avoided being injured. As it was his line of sight was otherwise directed. There were men working near by with tools operated by the air line pipe and other nearby operations causing much noise and tending, as before stated, to make imperceptible that of the crane. He worked on the inside of the trestle on account of the electric wires and his bad eye. Suddenly he was made conscious of the approach of the crane car. It was then only a few feet away. The crane man had not given him notice. Knowing if he remained where he was he was liable to be crushed, he made a quick movement to reach the place of safety. In doing so he grabbed the rail above, placing his hand in the pathway of the car and it was mangled thereby. He was not cautioned, as he said, to look out for the crane, but told, “Everything will be all right.” He testified that he was given assurance of safety. That was opposed by testimony that he was charged to watch out for the crane and he replied that he would take care of himself. There was also a conflict as to whether the crane man or hook man could attend to his duties and observe, at all times, a person circumstanced as plaintiff was. They testified very positively on the subject in the negative.

The fault relied upon was failure to furnish plaintiff a reasonably safe place to work, and to guard his safety by giving him notice of the approach of the crane car to his working place.

The cause was submitted to the jury with the following result: The place where plaintiff was employed was not as free from danger of personal injury as the nature of the work would reasonably permit. Such fact proximately caused the injury. When the foreman directed plaintiff to do the work he gave him assurance of personal safety. Plaintiff relied thereon. The failure to make good such assurance was the proximate cause of the injury. Plaintiff exercised ordinary care in relying on the assurance of safety. He did not arrange with the crane man in regard thereto. He was not told to speak to the crane man so the two would look out for each other and replied that he would look out for himself as the crane man had enough to do. The foreman failed to exercise ordinary care in respect to warning plaintiff of the dangers incident to the work and, particularly, as he was doing it. Such failure was the proximate cause of the injury. Plaintiff did not assume the risk of doing the work as he performed it. He was not guilty of any want of ordinary care which contributed, proximately, to his injury. He was damaged to the extent of $3,000. Judgment was rendered in his favor for such sum with costs.

Miller, Mack & Fairchild, of Milwaukee, for appellant.

Rubin & Zabel, of Milwaukee, for respondent.

MARSHALL, J.

The first complaint made on behalf of appellant is that the finding as to there not having been an arrangement between the craneman and respondent for the latter to care for his own safety, should have been changed to the affirmative. Two witnesses, the craneman and his assistant who attended to the hook, called the chainman, testified, positively, in the affirmative; the former to the effect that in a conversation with respondent it was definitely arranged that he would attend to his own safety, and the latter that he was near by and heard such conversation. That was corroborated by evidence of four witnesses as to respondent having said soon after the accident, that it happened through his own fault, as he had an arrangement with the craneman to look out for his own safety, and evidence of the foreman that, before work commenced, he admonished respondent to speak to the craneman so they would look out for each other, and respondent replied that he would look out for himself as the craneman had all he could attend to. Respondent denied having had the conversation testified to by the foreman and said that the only conversation had with the craneman consisted of his notifying the latter of his being on the work, and the craneman replying, “All right.” As to the claimed admission, he testified that he did not remember having made such, and that at the time of the so-called occurrence, he was suffering great pain.

In view of the foregoing in the record, clearly, the finding is against the preponderance of the evidence. The court might have set the verdict aside and granted a new trial on that account; but it does not, necessarily, follow that the court should have changed the answer to favor appellant, or that reversible error was committed in respect to the matter otherwise.

[1] While a jury finding against the clear preponderance of the evidence, presents a case for consideration by the trial judge within his discretionary right to grant a new trial, he is not required to do so, nor to change the finding to accord with the greater evidentiary weight. The latter is proper only when the evidence is so convincing as to leave no room, in any reasonable view, for conflicting inferences. In that situation the real truth of the matter appears as matter of law, leaving no legitimate jury question.

[2][3] So it has been often said that, while the trial court is justified in setting aside a jury finding if it appears to him contrary to the preponderance of the evidence, and where it is manifestly that way he ought to take such course, the discretionary power is so broad, it admits of being over-stepped only where, giving to the evidence all the weight it will reasonably bear and taking into consideration the most favorable inferences which in any reasonable view arise therefrom, there is no fair doubt but that the jury finding is wrong. Powell v. Ashland Iron & Steel Co., 98 Wis. 35, 73 N. W. 573. That has been commonly administered as requiring a verdict to be sustained unless contrary to all reasonable probabilities which, in general, excludes a situation where there is but the evidence of one witness which is not inherently false as contrary to physical possibilities or...