Blazinski v. Perkins

• Citation: 45 N.W. 947,77 Wis. 9
• Parties: BLAZINSKI v. PERKINS.
• Decision Date: 20 May 1890
• Court: United States State Supreme Court of Wisconsin

77 Wis. 9

45 N.W. 947

BLAZINSKI

v.PERKINS.

Supreme Court of Wisconsin.

May 20, 1890.

Appeal from circuit court, Marinette county.

Hudd & Wigman, for appellant.

Fairchild & Fairchild, for respondent.

ORTON, J.

The defendant was building a brick block, and employed the plaintiff and other brick-masons to lay the brick, and certain carpenters to do the woodwork. It became necessary to build a scaffold on which the plaintiff and another mason could stand to lay brick, and two of the carpenters, under a foreman, built the scaffold in some haste, as the masons were waiting for it. The plaintiff stood by and saw the work on the scaffold done, or, at least, the finishing part of it. There was testimony that the carpenters had prepared a brace to be placed in the middle of it, and which they thought was necessary to make the scaffold safe, and were about to put it in, when the plaintiff told them not to do so, as it would be in his way, and if they put it in he should have to take it out, and that the scaffold was all right without it. There was also testimony that a fellow-workman, on the scaffold with the plaintiff, knocked off with a hammer a stay-brace at some other part of the scaffold, and that these defects caused the scaffold to fall, and that it fell soon after the said stay was removed. There was some evidence tending to show that the scaffold was overloaded with brick. After working on this platform three or four hours, it fell, and carried with it the plaintiff, his fellow-workman, and an attendant, and injured the plaintiff very seriously. The jury found a verdict for the defendant. On this appeal from the judgment the learned counsel of the appellant assigns several errors of law, which will be disposed of in their order.

1. It seems that the foreman of the carpenters who put up the scaffold made a model of it, and such model was used by the witnesses of the defendant to illustrate to the jury how it was constructed. There was testimony that it was a correct model of the scaffold, but this was disputed by the plaintiff. It was not formally introduced in evidence, but the jury were allowed to take it to their room. This is assigned as error. The model became a necessary part of the witness' testimony, to go to the jury as such. It was not used as independent testimony of the real construction of the scaffold, but only to explain the testimony of the witnesses. This court very recently decided that an unrecorded plat of lots might be used in the same way, and might be formally introduced in evidence, and used by counsel on the argument. Meinzer v. Racine, 74 Wis. 166, 42 N. W. Rep. 230. The model so used and taken by the jury was only to show what the witness testified to, and would not corroborate the testimony in the least. It would be like a pencil drawing made by a witness on the stand, in the presence of the jury, to illusstrate or explain his oral evidence. The use of the model in this way seems to have been proper. See the authorities cited in the above case.

2. The witness Horde, the foreman, testified that when they were about to put in that brace the plaintiff said: “No use putting in that, because, if he put it in, they would take it out; no need of it; was in their way.” The witness added: “My men told me he [plaintiff] said so.” The plaintiff's counsel moved that the above...