Biersach v. Wolf River Paper & Fiber Co.

• Decision Date: 08 January 1946
• Citation: 20 N.W.2d 658,247 Wis. 536
• Court: Wisconsin Supreme Court
• Parties: BIERSACH v. WOLF RIVER PAPER & FIBER CO.

247 Wis. 536

20 N.W.2d 658

BIERSACH

v.WOLF RIVER PAPER & FIBER CO.

Supreme Court of Wisconsin.

Nov. 20, 1945.

Rehearing Denied Jan. 8, 1946.

Appeal from a judgment of the Circuit Court for Shawano County; Gerald J. Boileau, Judge.

Affirmed.

Action commenced September 1, 1943, by Nathalie Biersach, as special administratrix of the estate of Neils W. Peterson, deceased, plaintiff, against Wolf River Paper & Fiber Company, a corporation, defendant, to recover damages for the alleged wrongful death of Neils W. Peterson. Action was tried to the court and a jury, and a special verdict rendered. Judgment was entered April 2, 1945, dismissing plaintiff's complaint. Plaintiff appeals. The material facts will be stated in the opinion.

FOWLER, WICKHEM and MARTIN, JJ., dissenting.

Eberlein & Eberlein and M. G. Eberlein, all of Shawano, and Lehner & Lehner, Adolph O. Lehner, and Howard N. Lehner, all of Oconto Falls, for appellant.

Benton, Bosser, Becker & Parnell, of Appleton, for respondent.

BARLOW, Justice.

The jury found the deceased causally negligent as to (1) Lookout and (2) With respect to the position he occupied on or near defendant's narrow-gauge track; and found defendant causally negligent (1) In failing to provide a place of employment which was as free from danger to the life, health, safety, or welfare of frequenters as the nature of the employment and place of employment would reasonably permit, and (2) In failing to furnish and use safety devices and safeguards, and adopt and use methods and processes which were reasonably adequate to render such place of employment as safe for frequenters as the nature of the business would reasonably permit; and apportioned the negligence at 40% against defendant and 60% against deceased. Judgment was entered on the verdict, dismissing plaintiff's complaint.

The facts in general are not in dispute. Deceased, Neils W. Peterson, was station agent for the Chicago & North Western Railway Company at Shawano, Wisconsin, for about two years prior to his death. Defendant and respondent, Wolf River Paper & Fiber Company, is a manufacturer of pulp and paper, and operates its business at its mill in the city of Shawano. Among the buildings on its premises are the pulp mill and paper mill. The pulp mill is 80 feet easterly and westerly and 80 feet northerly and southerly. Commencing at the southwest end and extending easterly on the south side is a loading platform 57 feet long, 13.5 feet wide on the west and tapering to a width of 5.5 feet on the east, and 3 1/2 feet above the ground level. Near the westerly end of the pulp mill on the south side is a door 6.8 feet in width, opening into the mill and onto the platform. The distance between the south platform of the pulp mill and the north wall of the paper mill is 62.5 feet.

The Chicago & North Western Railway Company has a standard-gauge railway spur track extending generally east and west, the north rail of which is 3.8 feet south of the edge of the pulp mill platform. This track is known as the ‘spur’ or ‘chip’ track, and is used by the railway company to bring in and remove cars for loading or unloading purposes at the ground wood mill located easterly of the pulp mill. The distance between the rails of the chip track is 4.7 feet.

Commencing inside the pulp mill there is a narrow-gauge two-rail track, similar to the railway track, extending southerly to the paper mill. The distance between the rails of the narrow-gauge track is 2.7 feet. The length of the track inside the pulp mill is 14.8 feet and the width of the loading platform over which it passes is 11 feet. The space from the south edge of the platform over the railway track to the ground level beyond the south rail is covered by a ramp or tramway which can be raised and lowered to permit railway traffic on the chip track. The narrow-gauge tracks are level for a distance of 25.8 feet from inside the pulp mill, extending southerly to the south end of the loading platform. At that point they drop two feet in 18 feet, and from there on drop another two feet in 45 feet. On this narrow-gauge track defendant operates a truck which is approximately 8 1/2 feet long and five feet wide, with flange wheels. It has a platform which is about two feet above the ground level. On the north end of this truck is a small platform somewhat lower than the floor of the truck, on which the operator of the truck rides. On that end is a brake made out of a 2x4 timber attached to the lower end of a cross timber, to which on each side is attached a wooden shoe on which is attached rubber belting used to brake against the flange wheels by application of the 2x4 lever.

This pulp truck is loaded with two perallel rows of pulp bales to a height of 6 1/2 feet, the load weighing about four tons. While being loaded the south end of the truck is just inside the south door of the pulp mill. After loading, the two men who loaded the truck, and are known as roll-skinners, and the man in charge of the truck set it in motion by pushing the truck from the north end until the front end of the truck enters onto the ramp at the south end of the loading platform where, because of the down grade, the truck gains sufficient momentum to travel to and into the paper mill. The man in charge of the truck mounts the platform on its north end and rides it to the mill. The truck is returned to the pulp mill by means of a chain attached to its north end, which operates over a winch located in the pulp mill. A pedestrian walking from east to west in the middle of the railway track could first see the truck in the pulp mill at a point 20 feet east of the intersection of both tracks, and the whole truck would come into view at a point nine feet east of the intersection of both tracts. A person approaching from the west could first see the truck at a point 18 feet west of the intersection of the two tracks and the whole truck would be visible to him at a point five feet west of the intersection of both tracks.

Since the fall of 1942, respondent maintained a large pile of pulp in the northwest corner of the right angle formed by the south rail of the chip track and the east rail of the narrow-gauge mill track. This pile measured 12 to 14 feet from north to south and 12 to 15 feet cast and west, and was 12 to 15 feet high. It was located approximately four feet south of the south rail of the chip track and approximately two feet east of the east rail of the narrow-gauge track, and tapered or formed a wedge. It was piled so as to afford practically no clearance between the stationary pulp pile and the truck load of pulp as it passed southerly on its journey into the mill.

Located just above the pulp mill door is a klaxon auto born, which is turned on just previous to the time the loaded pulp truck is set in motion. A similar horn, pointing inward, is above and inside the north door of the paper mill.

The truck operator has only been operating the truck four days when the accident happened. He had never been informed of persons walking on the track and had never seen the deceased on any trip before. He could not see in front of the truck except a long distance ahead, and there was no opportunity to look until the north end of the truck cleared the pulp mill door. He did not see Peterson and did not know where he came from or what course he followed. There was no fixed time when the truck would proceed with a load to the paper mill. It made eight or ten trips every eight hours.

The deceased Peterson, 55 years of age, checked the west railway yards, including the defendant mill yards, for demurrage, daily for a period of two years prior to the day he was injured. He would drive his automobile to the mill yard, park it there and would walk on the chip track. On June 17, 1943, deceased left his home in the morning to go to work, parked his automobile at the paper mill yards, where it was found after he had been injured. There is no testimony where he was from the time he left his parked automobile and the time of his injury. On this morning, the truck operator, while taking the load of pulp from the pulp mill to the paper mill, felt a jolt as he passed the large pulp pile, and after he had passed the south edge of the pulp pile saw Peterson lying behind the truck across the narrow-gauge tracks. He raised an arm and motioned the truck operator on. There were fresh marks on the large pulp pile, the first mark being a short distance south of the northwest corner and continuing southerly five to six feet. Mill employees moved Peterson from where he fell, called an ambulance and had him removed to a hospital, where he died late that same afternoon. There was found in deceased's possession a book wherein were railway car numbers, one being the number of a car spotted on the railway chip track east of the pulp mill.

Appellant contends that the answers of the jury finding the deceased Peterson guilty of negligence as to lookout and the position assumed by him should have been changed by the trial court, for the reason that there is no evidence to sustain either finding. No one saw the accident and no one saw the deceased Peterson immediately prior to the accident which resulted in the fatal injuries by him sustained. Appellant relies on the presumption that the deceased Peterson used due care for his own safety, and contends that there is no evidence to sustain the findings of the jury. Appellant is entitled to the presumption claimed, but that presumption is not conclusive. It is rebuttable and ceases to have force when credible evidence is adduced which permits a contrary inference. Finkelstein v. Chicago & North Western Railway Co., 1935, 217 Wis. 433, 259 N.W. 254;Sweeo v. Chicago & North Western Railway Co., 1924, 183 Wis. 234, 197 N.W. 805; DeKeyser v. Milwaukee Automobile Insurance Company, 1941, 236 Wis. 419, 295 N.W. 755.

The complaint alleges that the deceased was walking west on the railroad track at the time...