Cummings v. Nat. Furnace Co.

• Decision Date: 18 March 1884
• Citation: 60 Wis. 603,18 N.W. 742
• Parties: CUMMINGS v. NAT. FURNACE CO.
• Court: Wisconsin Supreme Court

60 Wis. 603

18 N.W. 742

CUMMINGS

v.NAT. FURNACE CO.

Supreme Court of Wisconsin.

Filed March 18, 1884.

Appeal from circuit court, Brown county.Fish & Dodge and F. C. Winkler, for respondent, John C. Cummings.

Hudd & Wigman, for appellant, the National Furnace Co.

TAYLOR, J.

The facts upon which the respondent's action is based are substantially the following: The defendant was employed as a seaman upon the sailing vessel Experiment, and he was also a diver. The Experiment had been engaged in collecting iron ore which had fallen into the water from vessels at docks while unloading, or from vessels in distress, or which had been wrecked. Shortly before the accident occurred which caused the injury to the respondent, the Experiment, having on board between 50 and 75 tons of iron ore, put into the harbor of Green Bay to sell her cargo, and did sell the same to the appellant company, and the vessel was placed at the company's dock to be unloaded. By the contract of sale the company was to remove the ore from the deck and hold of the vessel, using its own machinery and its own men for that purpose. The captain of the Experiment, and his men on board of the vessel, were to have nothing to do with the unloading in any way, except to bring the vessel along-side of the appellant's dock. The vessel was properly placed at the company's dock by the captain of the vessel, and, after notice to the captain that they were ready to begin unloading the ore, and the captain announced that he was ready to have them begin, the employes of the company entered upon the vessel, and commenced the work of unloading. For the purpose of unloading the ore the company used a swinging crane standing on the dock, with an arm extending over the vessel, which carried a large bucket, into which the ore was filled, and, when filled, the bucket was hoisted onto the dock by a chain or rope passing over pulleys attached to the crane, the power which hoisted the bucket being on the company's dock. This bucket was large and heavy, about five feet high, and, when loaded, the load and bucket would weigh over a ton. The bail of the bucket, to which the rope or chain used for hoisting it was fastened, was attached to the outside of the bucket, some distance below the center, so that when left unfastened the bucket would tip, and so unload itself. In order to prevent the bucket from tipping or dumping while the same was being hoisted and carried to the place where it was to be unloaded, there was a spring fastened to the outside of the bail on one side, at the upper end of which spring was firmly attached a bolt of iron long enough to pass through a hole in the side of the bail near the top of the bucket, and through a hole in the side of the bucket, and, when the bail was held upright, the hole through the bail and the side of the bucket would be opposite to each other, and the power of the spring would force the bolt or pin through the bail and side of the bucket, and hold it firmly in its upright position. When the bucket was in use, a chain or rope was attached to the spring, so that when the bucket arrived at the place for unloading, some person having the management of this rope or chain could, by a sudden pull or jerk, withdraw the bolt from the side of the bucket, and the bucket would then tip of itself, and discharge its load.

After the employes of the defendant had removed two or three buckets of ore from the vessel, and while the bucket was being raised with another load to be carried upon the dock, and when it had been elevated 10 or 12 feet above the deck of the vessel, from some cause the bail of the bucket became loosened and it tipped, pouring its load of ore upon the deck of the vessel, and a part of the ore so poured from the bucket struck the plaintiff upon his back, shoulders, and legs, and caused the injury complained of. At the time the plaintiff received his injury he was standing in a stooping posture at the capstan of the vessel, putting a canvas around it to protect it from injury while the ore was being unloaded. He was at the time doing such work by order of the captain of the vessel. The place where he was standing at work was between six and seven feet from the place where the bucket was standing when it was filled, immediately before the accident happened, and about the same distance on one side of the bucket when it was being hoisted, immediately before it tipped and discharged its load upon the deck of the vessel and injured him.

There was no direct evidence which showed conclusively how the bail of the bucket became loosened and so tipped and poured its contents on the deck. The evidence tended to show that the bucket, bail, and spring were in good order, and the jury found as a fact on the trial that there was no defect in the machinery. The person who held the rope and whose duty it was to pull the spring so as to permit the bucket to tip and unload itself was not produced as a witness on the trial. The evidence tended to show that the accident might have happened if a piece of ore or other substance had got between the spring and bail so as to prevent the spring from forcing the pin or bolt sufficiently far enough into the side of the bucket, or it might have happened if the man holding the rope attached to the spring had accidently or carelessly pulled upon it or suffered the rope to get fastened in any way so as to draw upon the spring while the bucket was ascending. When the plaintiff's evidence was all in, and he rested, the defendant moved for a nonsuit on the ground that there was no proof of negligence on the part of the defendant, its servants, or employes, and on the ground that the evidence showed that the plaintiff was guilty of negligence which contributed to the injury. This motion was overruled, and defendant excepted. After all the evidence was in, the motion for nonsuit was reviewed upon the same grounds, and denied, and exception taken. Upon the request of the defendant the jury rendered a special verdict.

Upon the hearing of this appeal, the learned counsel for the appellant has made a very earnest and able argument in support of his assignment of error, that, upon the whole evidence, the court should have nonsuited the plaintiff upon both the grounds mentioned. He claims that there is no evidence tending to show negligence on the part of the defendant or its employes. The argument presented is that, as the jury have found that the bucket and machinery were perfect and in good repair, and there being no evidence showing any specific act of negligence on the part of the defendant's servants or employes, which caused the accident, neither the court nor jury had the right to infer, from the nature of the accident itself, that there was any negligence on their part. We think the argument is unsound. Admitting that the evidence shows, as the jury have found, that the bucket bail and spring which held the bail so as to prevent its tipping were all in perfect order, and as the proof shows that if they were all in perfect order and properly handled the bucket would not tip, it would seem to follow as a natural consequence that there must have been some neglect on the part of those handling the same, either in permitting some object to get between the spring and bail, which prevented the spring from forcing the pin through the bucket sufficiently far to hold, or that some object had been forced into the hole in the bucket so as to prevent the spring from forcing the pin far enough into the bucket to hold it safely, or that the party in charge of the rope attached to the spring had incautiously...