Driscoll v. Allis-Chalmers Co.

• Decision Date: 10 January 1911
• Citation: 129 N.W. 401,144 Wis. 451
• Parties: DRISCOLL v. ALLIS-CHALMERS CO.
• Court: Wisconsin Supreme Court

144 Wis. 451

129 N.W. 401

DRISCOLL

v.ALLIS-CHALMERS CO.

Supreme Court of Wisconsin.

Jan. 10, 1911.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Frank Driscoll against the Allis-Chalmers Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This action was brought to recover damages for personal injuries alleged to have been sustained in consequence of the negligence of the defendant. The answer, after certain admissions, denies generally the material allegations of the complaint. At the close of the plaintiff's evidence motion for nonsuit was denied and at the close of all the evidence defendant moved for a directed verdict, which was denied. The defendant requested the submission of certain questions to the jury, which were denied, and also excepted to certain of the questions submitted to the jury. The jury returned the following verdict:

“(1) Was the plaintiff on the 31st day of January, 1908, while at work in a trench in defendant's new power house at West Allis, injured by a block of wood falling on his back? Answer: Yes, by court (with consent of counsel).

(2) Was the plank runway over the trench at the power house, and under which plaintiff was working when injured, constructed by employés of defendant in such manner as to the reasonably safe and sufficient for the purposes intended? Answer: No.

(3) Was the said plank runway in a reasonably safe and sufficient condition for the purposes intended, at the time when plaintiff was injured? Answer: No.

(4) If you answer question 3 in the affirmative, you need not answer this question. Otherwise answer this question: Had such unsafe and insufficient condition of said runway existed for such a period of time that the defendant in the exercise of ordinary care ought reasonably to have known thereof, and had reasonable opportunity to have remedied the same at the time when plaintiff was injured? Answer: Yes.

(5) Was the place in the trench where Driscoll was ordered to cut the pipe and put in a tee and valve a reasonably safe place for him to work, if at the time plaintiff performed his work there other workmen of defendant company were permitted to use such planks to move or carry materials from one side of the trench to the other over said planks? Answer: No.

(6) If you answer question No. 5 in the affirmative then you need not answer this question. Otherwise answer this question: Was such unsafe and insufficient condition of such runway open and obvious to a person of ordinary care and prudence engaged in the work which plaintiff was performing at and prior to the time of his injuries? Answer: Yes.

(7) Did plaintiff's foreman, Jacob Williams, on the day before plaintiff was injured, assure plaintiff that the runway would not be used by the workmen of defendant while plaintiff was working in the trench under the runway? Answer: Yes.

(8) If you answer question 7 ‘Yes,’ then did the plaintiff, relying on such assurance, enter the trench to cut the pipe and provide the same with a tee and valve, as he was ordered to do? Answer: Yes.

(9) Ought the defendant or its representatives in the exercise of ordinary care reasonably to have known that the place in the trench where the plaintiff was ordered to cut the pipe and provide the same with a tee and valve was not a reasonably safe place to do such work, if at the time when plaintiff was doing such work other workmen were allowed to carry materials over such plank? Answer: Yes.

(10) If you answer question 5 ‘No,’ then answer this question: Was the defendant's failure to provide plaintiff with a reasonably safe place to do the work of cutting the pipe and putting in a tee and valve the proximate cause of plaintiff's injury? Answer: Yes.

(11) Did Earl Rasmussen, an employé of the defendant, while passing over the runway in question, negligently drop the block which injured the plaintiff? Answer: Yes.

(12) If you answer question No. 11 ‘Yes,’ then answer this question: Was such negligence the proximate cause of plaintiff's injury? Answer: Yes.

(13) Did any failure on the part of plaintiff to exercise ordinary care at the time and place in question, contribute proximately to cause his injuries? Answer: No.

(14) Was the said runway used while plaintiff was on said job? Answer: Yes.

(15) If you answer question 14 in the negative, then you need not answer this question. Otherwise, answer this question: Was such use of said runway known to the plaintiff at or prior to the accident in question? Answer: No.

(16) If you answer question No. 14 in the negative, then you need not answer this question. Otherwise, answer this question: Was the use of said runway such that the plaintiff in the exercise of ordinary care ought reasonably to have known thereof? Answer: No.

(17) If you answer the seventh question ‘No,’ then answer this question: Did the plaintiff assume the risk of injury from the wooden block being dropped by a fellow workman so as to fall upon him, under the conditions of the work which existed at the time and place in question? Answer:

(18) If you answer question No. 7 ‘Yes,’ then answer this question: Did plaintiff assume all risks of injury, if any, arising from the failure by Jake Williams, his foreman, to see to it that the runway in question was not used while plaintiff was on the job of putting in a tee and valve in the pipe at the bottom of the trench? Answer: No.

(19) Was plaintiff injured at the time and place in question, as the result of an accident? Answer: No.

(20) If the court shall be of the opinion that the plaintiff is entitled to recover, at what sum do you assess the plaintiff's damages? Answer: $20,000.”

Defendant also moved for judgment notwithstanding the verdict, for changes in the special verdict, and that the verdict be set aside and a new trial granted, which motions were denied, and judgment rendered in favor of the plaintiff on the verdict, from which this appeal was taken.

Winslow, C. J., and Barnes, J., dissenting in part.

Harper & McMynn (Max W. Babb, of counsel), for appellant.

Harry M. Silber (A. J. Schmitz, of counsel), for respondent.

KERWIN, J. (after stating the facts as above).

The questions of fact litigated upon the trial are quite fully presented in the special verdict, which is set out in the statement of the case. At the time of the injury plaintiff was a married man, 30 years of age, and his family consisted of his wife and two children. The defendant was engaged in building large additions and extensions to its plant, including a new power house and equipments. The plaintiff was injured January 31, 1908, while at work in a trench in the new power house basement by a heavy wooden block falling upon him. Over 4,000 men were employed by the defendant at the time, and the work was carried on through different departments, among them being the carpenters' department and steam fitters' department, the plaintiff belonging to the latter. A plank runway had been constructed over the trench in which plaintiff was working, which runway was used by men engaged in other departments of the work. The trench extended across the basement of the building in process of construction from the south to the north and was from seven to eight feet wide and from five to six feet deep. One L. F. Bower was vice president of the defendant, and C. E. Search general superintendent. Edward Killingstad was foreman of the carpenters' crew, and Jake Williams of the steam fitters' crew. The runway was constructed across the trench where plaintiff was engaged when injured some two weeks before the injury under the direction of the foreman of the carpenters' department, over which to carry material in the construction of the work. The plaintiff did some work in the trench on January 30, 1908, upon a pipe which was near the bottom of the trench, probably less than a foot above the bottom and on the 31st, in the forenoon, he was at work completing the job, working in a stooping position when a block fell and injured him. There was also an equipment department engaged in the work, which department at the time of the injury was engaged in running up a new condenser a few feet from the runway in question.

The evidence tends to show that at the time of the injury one Rasmussen, a helper, was engaged in assisting the equipment department, and that he dropped the block upon plaintiff; that the runway was constructed of three planks each 10 inches wide and 2 inches thick and from 14 to 20 feet long, resting upon a cement floor at one end and upon a pipe which was some six inches above the floor at the other end, which pipe was suspended from the ceiling or another pipe above by ropes; that these three planks were placed about 1/2 inch apart, and were thrown across the trench, not nailed or fastened, and when walked upon would spring down a considerable distance. There is also evidence tending to show that plaintiff refused to work in the trench while the runway was being used, and that prior to the injury Jake Williams, plaintiff's foreman, promised that the runway would not be used while plaintiff was at work in the trench, and that no one should bother him and that plaintiff relied upon such promise; that plaintiff worked under the runway on January 30th from 2 to 4:30 p. m., and on the 31st, the day he was injured, from about 8 a. m. to some time between 9 and 10 a. m., and that he did not know of the use of the runway while he was in the trench before he was injured. Plaintiff was injured while he was in a stooping position calking the pipe at the bottom of the trench, and the evidence shows that it was noisy, all engines, one being right above him, working; there were laborers from 25 to 50 feet east of him, also south of him 30 to 40 feet; that the planks over the trench were loose, not fastened together, nor supported in the middle, no cleats under them and were springy; that the man who dropped the block on plaintiff was not...