Deaton v. Unit Crane & Shovel Corp.

• Decision Date: 01 December 1953
• Citation: 265 Wis. 349,61 N.W.2d 552
• Parties: DEATON, v. UNIT CRANE & SHOVEL CORP.
• Court: Wisconsin Supreme Court

Page 552

61 N.W.2d 552

265 Wis. 349

DEATON, v. UNIT CRANE & SHOVEL CORP.

Supreme Court of Wisconsin.

Dec. 1, 1953.

Action by the plaintiff Donald R. Deaton to recover damages for personal injuries against the defendant Unit Crane and Shovel Corporation.

The defendant corporation is engaged in the manufacture of power shovels in the city of West Allis. It desired to have sewer pipes laid on its manufacturing premises and contracted with William Faust & Co. to lay such pipes in trenches to be dug by the defendant with one of its own power shovels. The power shovel had a clamshell bucket which was lowered and raised by cables from the end of the crane portion of the machine. The plaintiff was an employee of William Faust & Co. On the day of the accident William Faust & Co. had no foreman on the job and, plaintiff's own work being slack, he went over to the power shovel and by means of his hands guided the bucket as it was lowered into the trench several times. Plaintiff testified that no one warned him to stay away and not place his hands on the bucket. Schultz, the operator of the power shovel, testified that he specifically told plaintiff not to guide the bucket, but to stay away from the same. Wiggins, the works manager of the defendant, also testified that he saw plaintiff put his hands on the bucket and that he then told him to keep away from the bucket shortly before the accident happened.

The action was tried to the court and a jury, and the trial court submitted a special verdict to the jury, the first question of which read as follows:

'Did the crane operator of the defendant Company fail, at and before the time in question, to maintain the employment, or place of employment, of the plaintiff, Donald R. Deaton, in as safe a condition as the nature and place of his then employment reasonably permitted:

'(a) In respect to the time or manner of dropping the crane bucket?

'(b) In respect to warning said plaintiff Deaton before dropping said crane bucket?'

The jury answered both subdivisions of such question 'yes', and, by their other answers in the verdict, found that such acts of defendant's crane operator were causal; that plaintiff did not acquiesce in the manner in which the operator dropped the bucket; that plaintiff was guilty of contributory negligence; that 84 per cent of the combined negligence was attributable to the crane operator and 16 per cent to the plaintiff; and determined the plaintiff's damages. Judgment was entered April 27, 1953, upon the verdict in favor of the plaintiff and against the defendant for 84 per cent of the amount of damages found by the jury, together with costs and disbursements. From such judgment the defendant has appealed.

Morris Stern, Milwaukee, for appellant.

Gauer & Buer, Milwaukee (Samuel P. Murray, Bendinger, Hayes & Kluwin, Bernard J. Hankin, Milwaukee, of counsel), for respondent.

CURRIE, Justice.

Not only did the learned trial court submit the question in the special verdict relating to the negligence of defendant's crane operator under the Safe-Place Statute, section 101.06, Stats., but the court also instructed the jury on defendant's liability under such statute. In such instructions the trial court also defined the phrase 'as free from danger to him [plaintiff] as the nature or place of employment would reasonably permit', which is a close approximation of the language employed in section 101.01(11), Stats., in defining the term 'safe'.

We consider such submission of defendant's negligence on the theory of a possible violation of the Safe-Place Statute to have constituted prejudicial error. As applied to a 'place of employment' such statute has reference to an unsafe condition rather than to an act in the process of taking place. The pleadings did not raise any issue as to any unsafe condition of the power shovel, nor did the evidence establish such an...