Cummings v. Nat'l Furnace Co.

• Decision Date: 23 September 1884
• Citation: 20 N.W. 665,60 Wis. 603
• Parties: CUMMINGS v. NATIONAL FURNACE CO.
• Court: Wisconsin Supreme Court

60 Wis. 603

20 N.W. 665

CUMMINGS

v.NATIONAL FURNACE CO.

Supreme Court of Wisconsin.

Filed September 23, 1884.

Opinion on motion for rehearing. S. C. 18 N. W. REP. 742.

TAYLOR, J.

If the court, on the hearing of this case, was led into an error of fact in regard to what the evidence established in regard to the way the bucket in which the ore was hoisted from the vessel was handled, we can only excuse ourselves by saying that the court was brought into the error mainly by the statement of fact made by the learned counsel for the appellant in his printed briefs. On the third and fourth pages of that brief we find the following statement: “The buckets are lowered and hoisted by machinery, and when filled and in process of being hoisted, the bucket is held in an upright position by springs, to which there is a cord or wire attached, that, when the bucket reaches its desired elevation, or point of deposit, is pulled and the bucket turns over, or, as the furnace men phrase it, ‘dumped,’ and the contents fall as desired.” The italics are ours.

This statement of facts was, so far as we now remember, taken as true upon the argument of counsel on both sides. Certainly there was no statement made by the learned counsel which was in conflict with it. And when the counsel for the respondent made use of the statement of fact, in order to show how the accident might have occurred, no attempt was made by the learned counsel for the appellant to correct the opposite counsel, or to call the attention of the court to what is now claimed as a gross mistake of fact made by appellants in their printed brief.

As there was nothing in the evidence which is necessarily in conflict with the statement made by the learned counsel for the appellants, and as there was evidence showing that sometimes there was a trip-rope or cord attached to the spring, and, at other times, the spring was drawn out by the hand of some person standing at the place where the bucket was to be discharged, this court had the right to adopt the statement of the appellant's counsel who was at the trial in the court below and was supposed to know what the real truth as to that matter was. There certainly is no affirmative evidence in the record that “no cord or wire” was attached to the spring of the bucket in question at the time the accident occurred. This court cannot, therefore, be rightfully charged with having made a mistake as to what the facts in the case were. But since our attention has been called to the facts relating to the handling of the bucket more particularly, and to the evidence upon that subject, and the learned counsel having withdrawn his statement made in his former brief, we must admit that there is no satisfactory evidence showing that any cord or wire was attached to the spring of the bucket then in use; and from the further fact that the evidence tends to show that the bucket was unloaded in a car standing upon the dock, it is reasonable to presume that some person standing near the place of unloading the bucket would pull the spring, and not some person standing on the deck of the vessel. For the purposes of this motion for a rehearing, we shall therefore take it for granted that such was the fact.

Admitting that fact, we are still of the opinion that there was evidence to go to the jury upon the question of the negligence of the servants of the defendant in handling the bucket at the time the accident happened. If, as is claimed by the learned counsel for the appellant, the machinery was all in good repair, then we think the evidence strongly tends to prove that...