Dodge v. Kaufman
| Decision Date | 28 January 1913 |
| Citation | 152 Wis. 171,139 N.W. 741 |
| Parties | DODGE v. KAUFMAN ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Langlade County; John Goodland, Judge.
Action by William Dodge against John Kaufman and others. From a judgment for defendants entered on a directed verdict, plaintiff appeals. Affirmed.
Plaintiff brought this action to recover damages for personal injuries sustained on the 27th day of February, 1911, while he was working about defendants' sawmill. He was then 42 years old, and was engaged in hauling away lath waste and other refuse. On the day of the injury he drove a dump cart, drawn by two horses, into a driveway underneath the sawmill to empty into the cart the refuse of a dump box which was built into and extended from the ceiling of the driveway. This driveway was 25 feet long, 10 feet and 1 1/2 inches wide, and ran east and west. The height of the dump box from the floor was 6 feet 7 inches, and from the ceiling to the bottom of the dump box the distance was 5 feet and 1 1/2 inches. The dump cart was 6 feet 11 inches wide and 6 feet 4 inches high. In driving under the dump box it was necessary for plaintiff to slightly lower his head when sitting on the seat of the dump cart to avoid striking it. At the west side of the dump box and on the north side of the driveway, 6 feet 10 inches above the floor, was a conveyor, consisting of a metal chain running on sprockets with side crosspieces upon it. The end of the conveyor projected out into the center of the driveway and within about 22 inches from the dump box. On the east side of the dump box, and within 2 feet thereof, was a shaft extending across the driveway about 6 1/2 feet above the floor thereof. It was also necessary for plaintiff, when sitting on the seat of his cart, to lower his head while driving under the shaft. The plaintiff testified that on the day in question he drove into this driveway from the east with his dump cart to empty the dump box; that, as he neared the box, his horses became frightened because of the movement of the conveyor and started to run, so he drove away, and did not empty it. About half an hour later, and after emptying other boxes, he returned and entered the driveway from the west. His horses, however, again became scared, and jumped, as they approached the box. While he attempted to control them and to watch the position of his cart, his head struck the dump box, and he received the injuries for which damages are claimed. The horses did not run, but remained standing in the passageway after plaintiff was hurt. The proof also shows that plaintiff had driven this team of horses for a period of seven months, and for three months immediately prior to the beginning of this action made continued use of them in emptying the dump box twice a day; that they were quiet, well broken, and gentle, and had never shied or escaped from control while defendants owned them; that plaintiff knew and was familiar with the location of the shaft, conveyor, and dump box; and that the driveway was well lighted.
The case was tried before the court and a jury. At the close of the testimony the court directed a verdict in favor of the defendants and against the plaintiff, dismissing the action, with costs. From a judgment entered on such verdict, the plaintiff appealed.Brown, Pradt & Genrich, of Wausau, for appellant.
Lawrence A. Olwell and Burr J. Scott, both of Milwaukee, for respondents.
VINJE, J. (after stating the facts as above).
A considerable portion of the briefs of both parties is devoted to a discussion of defendants' negligence in failing to furnish plaintiff a safe place in which to work, and of plaintiff's contributory negligence. In the view of the case taken by the court, these questions become immaterial. It may be added in passing that, were the question of plaintiff's contributory negligence material, it would be for the jury. We shall assume, however, that a safe place was not furnished, and that plaintiff was free from contributory negligence, and dispose of the case on the question of the assumption of risk.
[1] That assumption of risk and absence of contributory negligence may coexist is expressly decided in Campshure v. Standard Mfg. Co., 137 Wis. 155, 118 N. W. 633, and in Van Dinter v. Worden-Allen Co., 138 N. W. 1016. So we will turn our attention to the real crux of the case as disclosed by the evidence, and consider whether or not plaintiff assumed the risk resulting from the location of the dump box.
[2] It is elementary that, where the dangers of a servant's working place are open and obvious to and appreciated by him, he assumes the risk thereof by continuing in the employment without objection. Hencke v. Ellis, 110 Wis. 532, 86 N. W. 171.
[3] Plaintiff was a man of...
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Luebben v. Wis. Traction, Light, Heat & Power Co.
...defective track. Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568;Coel v. Green Bay Traction Co., 147 Wis. 229, 133 N. W. 23;Dodge v. Kaufman, 139 N. W. 741. Among cases in our own court that tend to sustain the conclusion reached, though under a different state of facts, may be cited: Lau......
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Fandek v. Barnett & Record Co.
...may coexist, or one may be present and the other absent. See Campshure v. Standard Mfg. Co., 137 Wis. 155, 118 N. W. 633;Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741; Van Dinter v. Worden-Allen Co., 153 Wis. 533, 138 N. W. 1016, 142 N. W. 122; Murray v. Paine Lumber Co., 155 Wis. 409, 144 ......
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Murray v. Paine Lumber Co.
...risk and absence of contributory negligence is well settled. Campshure v. Standard Mfg. Co., 137 Wis. 155, 118 N. W. 633;Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741; Van Dinter v. Worden-Allen Co., 153 Wis. 533, 138 N. W. 1016, 142 N. W. 122. And had the instructions under question 9 rela......
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Wilger v. Wis. Traction, Light, Heat & Power Co.
...or injury. Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568;Coel v. Green Bay Traction Co., 147 Wis. 229, 133 N. W. 23;Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741;Luebben v. Wisconsin T., L., H. & P. Co., 154 Wis. 378, 141 N. W. 214, 49 L. R. A. (N. S.) 517. In Dodge v. Kaufman, 152 Wis.......