Cadden v. Am. Steel-Barge Co.

• Decision Date: 23 October 1894
• Parties: CADDEN v. AMERICAN STEEL-BARGE CO.
• Court: Wisconsin Supreme Court

88 Wis. 409

60 N.W. 800

CADDEN

v.AMERICAN STEEL-BARGE CO.

Supreme Court of Wisconsin.

Oct. 23, 1894.

Appeal from superior court, Douglas county; Charles Smith, Judge.

Action by John Cadden against the American Steel-Barge Company for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought by the plaintiff to recover against the defendant the damages sustained by him while in the employ of the defendant, alleged to have been caused by its negligence. The defendant owned and operated the American Steel-Barge Works at Superior, for building the vessels known as “Whalebacks;” and at the time of the injury of which the plaintiff complained, June 28, 1892, he was in defendant's employ as a riveter in and about its works. In his said employment it was the plaintiff's duty to go upon an elevated scaffold or platform on and along the side of a certain whaleback to work as a riveter thereon; and it is alleged that it was the defendant's duty to procure and furnish, for the use of the plaintiff, a good, safe, and secure scaffold upon which to stand while so at work; that the defendant, by two persons employed by it to erect and suspend said scaffold and put it in order, performed said work in a negligent, unskillful, and unsafe manner, of which the defendant had notice, but its unsafe and dangerous condition was unknown to the plaintiff, and the defendant negligently omitted to warn the plaintiff thereof; that while the plaintiff was on the said scaffold, in his said employment, by reason of its unsafe and dangerous condition, it tipped up to one side, without fault on his part, whereby the plaintiff was thrown from the same down to the dock, a distance of 20 feet, and severely injured, to his damage, etc. The defendant denied the alleged negligence, and that it provided or furnished any unsafe, defective, or insufficient scaffolding, or that the plaintiff was injured thereby, and alleged that he was injured by and through his own fault and negligence. Upon a trial before the court and a jury, a special verdict was found: (1) That the plaintiff in June, 1892, while in the employ of the defendant, fell from a suspended scaffold, and received injuries. (2) That there was a crew of men employed by defendant whose exclusive duty it was to construct or place scaffolding where and when called upon by the workmen employed in building barges. (3) That it was the custom and understanding that the scaffold builders should receive no suggestions, directions, or assistance as to and in constructing or placing in position the scaffolds, but should themselves, without interference or assistance from the workers calling for the scaffolds, construct and place the same. (4) That in the present case the plaintiff did not erect or assist as to placing or adjusting the scaffold from which he fell. (5) That the persons who placed the scaffold in position did not exercise ordinary care in so doing. (6) That the scaffold, as left by those who placed it, was not in a position reasonably safe for the purposes for which it was to be used. (7) That the plaintiff did not know, and in the exercise of ordinary care would not have known, of the unsafe character of the scaffold before his fall, and in season to avoid the danger. (8) After the plaintiff got on the scaffold, he exercised ordinary care for his own safety. (9) Scaffolds and appliances of the kind of the one in question were not in general use in the defendant's yards for a length of time prior to the accident. (10) They were not used for a length of time for the convenience of the riveters. Plaintiff's compensation for the injury was fixed at $3,250. The court made findings of facts on certain other questions from the evidence, by consent of the parties, in substance that Mongela and Johnson, employés of defendant, and members of scaffold building crews, were the only persons who aided or directed in building or erecting and suspending the scaffold in question; that the want of ordinary care on their part in building, erecting, and suspending the scaffold was the proximate cause of plaintiff's injuries; and that the defendant retained supervision over the building and erecting and suspending the scaffold in question, and over the men who erected the same. Judgment was given in favor of the plaintiff, and against the defendant, for said $3,250, and costs, from which the latter appealed. Such other facts as are material are stated in the opinion.Kennedy & Burnett, for appellant.

Mills & Dahl, for respondent.

PINNEY, J.

1. There does not appear to have been much dispute in respect to the facts, and the verdict of the jury is, we think, sustained by sufficient evidence. It shows that the custom and practice was that all scaffolds were supplied for the riveters by the defendant company, and there were men there under its control for the special purpose of building and placing them in the positions directed by the riveters. With this the riveters had nothing whatever to do, beyond telling them where they wanted the scaffolds placed. The scaffold was constructed of two planks nailed upon crosspieces at each end, with ropes attached to the crosspieces on the inside and outside to suspend it, and these were fastened to stanchions above the deck. The inner ropes lay flat against the side of the boat, which curved inward. It was necessary that the outer side of the scaffold should be the highest, so that it would tip towards the side of the boat, and rest securely against it. It appeared that the accident was caused by the improper and dangerous manner in which the scaffold was suspended and adjusted, so that it tipped outward and to the dock; and, in consequence, when the plaintiff got upon it, the inner side of the scaffold slipped up the side of the boat, and rested flatwise on its side, instead of its edge resting securely against it, whereby the plaintiff was thrown upon the dock below.

2. The ruling of the court excluding the testimony of the witness Rogers as to the custom of the defendant relative to the control of the scaffold builders was properly made. It did not appear that he was sufficiently qualified to testify on the subject. He said, in substance, that he learned the custom from the defendant's superintendent when he (witness) took charge as foreman of the carpenters, about six months before the accident; that they were told the scaffold builders were to do whatever they told them, and whenever they told them. He did not profess to have any knowledge as to the relation between the scaffold builders and riveters, or, indeed, of any custom at all. He knew simply what the superintendent had told him.

3. It is contended that the plaintiff was guilty of contributory negligence in going upon the scaffold in the manner in which it had been adjusted and suspended, but the verdict of the jury, upon sufficient and competent evidence, has found on this point in favor of the plaintiff. It appears that, after the plaintiff had riveted up the side of the whaleback three or four feet, he directed the scaffold builders to raise the scaffold up so the hatch could be finished, and they began doing so, when he left to take some chisels to be sharpened. He returned after an absence of 15 minutes, and the scaffold builders were about leaving just as he came on deck, within about 100 or 150 feet from where the scaffold was hung. That he asked one of them (Johnson), “Is that scaffold all right now?” and he said, “Yes.” That he looked no further until he got down to where the scaffold was, and then down to the scaffold, and then he looked over to see if it was in its right place, and it appeared to be. He then had to slide down over the side of the whaleback six or seven feet to get upon it. He testified that he always took a look at a swinging scaffold before going upon it, to see if it was all right, and took a look at this...