Curran v. A. H. Stange Co.

• Decision Date: 01 March 1898
• Citation: 98 Wis. 598,74 N.W. 377
• Parties: CURRAN v. A. H. STANGE CO.
• Court: Wisconsin Supreme Court

98 Wis. 598

74 N.W. 377

CURRAN

v.A. H. STANGE CO.

Supreme Court of Wisconsin.

March 1, 1898.

Appeal from circuit court, Lincoln county; Charles V. Bardeen, Judge.

Action by John Curran against the A. H. Stange Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover for personal injuries. The defendant owned and operated a sawmill at Merrill, Wis., which had two sawing outfits upon the main floor, each of which in part consisted of what is called a “saw carriage,” propelled by steam feed, and running on tracks from north to south, lengthwise of the mill. The plaintiff was employed on the 5th of August, 1895, to act as “carriage rider” on the west carriage and upon the night force. He went to work at 6 o'clock that night, it being the first night that this carriage was operated for the season. The force which ran each carriage was composed of three men,--a sawyer, a setter, and a carriage rider. The sawyer stood on the floor of the mill west of the carriage, and had two levers in front of him, one of which was used to start, operate, and control the saw carriage, and one was to operate what is called a “steam nigger,” which rolls logs from the log deck to the carriage. The sawyer has complete control of the movements of the carriage, which he runs back and forth upon the tracks at great speed, by letting steam into the cylinder. The duties of the setter were to stand upon the carriage near the north end, and, by means of a lever, to set the log at the proper distance from the saw, so that the lumber made as the log passed the saw would be of the proper thickness, and also to assist in dogging and undogging the logs. The carriage rider's duties were to assist in rolling the logs from the log deck to the carriage and to fasten the same by the dog levers. Both the carriage rider and the setter rode upon the carriage all the time, but had no means of controlling its movements except by signals to the sawyer. Upon the night when the plaintiff went to work one Brown was the sawyer and one Dickenson was the setter. The plaintiff did not know Brown personally. The evidence shows that the position of sawyer is one requiring great skill and experience, and that Brown had been a sawyer in several mills for several years up to the year 1891, but since that time had done no work as a sawyer. The saw carriage was operated by these three men during the night, and the plaintiff's testimony tends to show that Brown was unable to handle the saw carriage as it should be handled; that he found it difficult, if not impossible, to stop it at the right points; and that it bumped frequently at the bumpers, and that it gigged back and forth, making it hard for the setter and rider to do their work. One Elsen was the superintendent of the mill, and employed the entire crew, and was present during the night in question for a considerable time, and saw how the carriage was operating. Upon quitting work in the morning the plaintiff claims that he complained to Elsen of Brown's incompetency, and that Elsen said he guessed Brown couldn't saw, and that he would fire him, and put one Fowler on as sawyer. Elsen's testimony is to the effect that Curran complained of Brown, and said that he was afraid of him, and that he (Elsen) said: “Do not be afraid of him. He is supposed to be a good man, and if he don't make it I will get some one who will. I may get Fowler.” Fowler was the setter upon the other carriage. The evidence further shows that the plaintiff went home and slept that day, and returned to work in the evening, and found Brown again acting as sawyer and Dickenson as setter, but that the superintendent was not there, and that Fowler was still doing the setting upon the other carriage. The plaintiff went to work, thinking, as he claims, that probably Elsen had been unable to find any one to take Fowler's place as setter, and hence that the change had not been made on this account, but still relying upon the promise to change. About an hour after the work commenced Fowler was called away, and the day setter put in his place, and the plaintiff testifies that he thought this indicated that the change would soon be made. About two hours after work commenced the plaintiff's saw carriage was gigged back to the log deck, and stopped, in order to turn the log. Thereupon the plaintiff undogged the log, and, being slippery, it rolled from the saw carriage onto the log deck. At this moment Brown, the sawyer, saw that his lever which controlled the carriage was not standing straight, as it should when the carriage was at rest, and he took hold of it to straighten it, and in so doing pulled the lever too far, and let on the steam, and the carriage started suddenly south, and went on to the end of the track. The plaintiff, being on the north end of the carriage, was thrown off between the tracks by the sudden start, and fell down into a chute for conveying away the refuse below, and between the tracks, and was severely injured.The negligence claimed by the plaintiff was in the hiring of an incompetent sawyer, known to be such.

The jury returned the following special verdict: “(1) Did the defendant use such care in selecting and hiring Brown to act as sawyer as the majority of sawmill owners or superintendents would have used under the same or similar circumstances? Answer. No. (2) Was Brown a competent sawyer when the defendant hired him, in August, 1895? Answer. No. (3) Was Brown a competent sawyer at the time of the accident? Answer. No. (4) If Brown was an incompetent sawyer at the time of the accident, did Elsen know, or ought he reasonably to have known prior to the accident, that Brown was incompetent? Answer. Yes. (5) On the morning of August 6, 1895, did Curran complain to Elsen that Brown was an incompetent sawyer, and say to him that he would not continue longer as carriage rider, with Brown as sawyer? Answer. Yes. (6) Did Elsen then tell Curran that he would discharge Brown as sawyer and employ Fowler in his place? Answer. Yes. (7) From all the circumstances and from the conversation which occurred between Elsen and the plaintiff on the morning of August 6, 1895, would a man of ordinary intelligence have understood therefrom that Brown would be discharged, and Fowler put in his place, by the time the plaintiff was to begin work again? Answer. No. (8) If you answer question No. 6 in the affirmative, then, under all the circumstances, did the plaintiff continue in his said employment for a longer time than was reasonable to allow defendant to discharge Brown and employ Fowler as sawyer? Answer. No. (9) If the plaintiff's version of the conversation which occurred between Elsen and himself on the morning of August 6, 1895, is the true one, did the plaintiff begin work on the night run, relying upon the promise made to him by Elsen to discharge Brown? Answer. Yes. (10) Was the danger to be apprehended from riding the carriage in question, under Brown's management as sawyer, so great, immediate, and constant that a reasonably prudent person, acting in the light of all the circumstances under which plaintiff acted, ought not to subject himself to it? Answer. No. (11) Did a want of ordinary care on the part of Brown cause the carriage to start and injure the plaintiff? Answer. No. (12) Was the injury to plaintiff caused by the want of skill or incompetence as a sawyer on the part of said Brown? Answer. Yes. (13) Would the majority of mill owners or superintendents, under the circumstances of the situation in which Elsen was placed, have reasonably expected that the sawyer Brown, in the exercise of ordinary care, would be likely to cause injury to plaintiff by reason of his manner of handling the carriage upon which plaintiff was riding? Answer. Yes. (14) What damages has the plaintiff sustained by reason of his injuries? Answer. $5,500.”

From judgment for the plaintiff on this verdict, the defendant appeals.

Curtis & Reed and C. H. Van Alstine, for appellant.

Flett & Porter, for respondent.

WINSLOW, J. (after stating the facts).

It is claimed that this judgment should be reversed: (1) For failure to grant a nonsuit, or, in default thereof, to direct a verdict for the defendant; (2) for errors in the admission of evidence; (3) for errors in refusing to give certain proposed instructions; (4) for errors in instructions given; (5) for error in the form of question 10 in the special verdict; (6) for failure to submit all the issues; and (7) for failure to grant a new trial. These questions will be considered in the order indicated.

1. It is claimed in the appellant's brief, although the claim was practically abandoned at the argument, that there was not sufficient testimony to show that the sawyer, Brown, was incompetent, but rather that he was out of practice, so to speak, by reason of the fact that he had not operated a saw carriage for four years. We are satisfied, however, that the evidence is amply sufficient to justify the verdict of the jury that Brown was incompetent at the time of the accident to handle a carriage with that skill which such work evidently requires. Whether such incompetency arises from mere lack of practice for several years, or from the fact of never having operated a carriage at all, can make...