First Wis. Trust Co. v. Chi., M. & St. P. Ry. Co.

• Decision Date: 05 June 1923
• Citation: 180 Wis. 648,194 N.W. 26
• Court: Wisconsin Supreme Court
• Parties: FIRST WISCONSIN TRUST CO. v. CHICAGO, M. & ST. P. RY. CO.

180 Wis. 648

194 N.W. 26

FIRST WISCONSIN TRUST CO.

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

June 5, 1923.

Appeal from Circuit Court, Milwaukee County; C. M. Davison, Judge.

Action by the First Wisconsin Trust Company, as administrator of the estate of Patrick J. O'Brien, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action to recover damages for the wrongful death of plaintiff's decedent. The decedent was an employee of the defendant, in the capacity of furnaceman, in its car repair shops in Milwaukee. On December 7, 1920, the deceased was assisting in bending a U-shaped strap for a main rod on an L3 locomotive engine. The strap was being made from a piece of metal eight or nine inches in diameter and six feet in length. This piece of metal was first heated in the furnace, then placed under a steam hammer and flattened down. After it was flattened down, the crew started to bend it in the following manner: The metal was placed on the hammer table under the steam hammer. Two half-round tools, each consisting of a piece of steel eight or nine inches long, four or five inches high, flat on one side and half-round on the other, with an iron handle six or seven feet long, about the dimensions of a broomstick, with a loop at the end for the hand to grasp, were first placed on the hammer table and these half-round tools supported the metal bar at either end thereof. The flat part of these tools rested on the hammer table and the metal bar rested on the round portion thereof. Another half-round tool was placed on top of the metal bar in the center thereof and immediately under the steam hammer; the round part of the tool placed on top of the metal bar resting thereon so that the flat surface was on top. The hammersmith held the upper tool in his left, and one of the lower tools in his right hand. He held them by grasping the loop at the end of the handle with his hand. Another helper similarly held the other half-round tool, and the deceased was assisting in holding the metal bar in position with a pair of long tongs. During the operation, the half-round tool held in the foreman's right hand slipped with great force from its position, and the handle of the tool struck the deceased on the shin, causing an abrasion of the skin and perhaps a bruise to the bone. The injury did not seem serious at first, but it refused to heal. The deceased was eventually taken to the hospital, where he died on April 12, 1921.

At the close of his testimony the trial court directed a verdict in favor of the defendant, and from the judgment entered thereon plaintiff brings this appeal.Hennessey & O'Boyle, of Milwaukee, for appellant.

H. J. Killilea, of Milwaukee, for respondent.

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

A principal controversy in the case was whether the deceased was engaged in interstate commerce at the time of the injury, it being the contention of the defendant that he was so engaged and that under the federal Employers' Liability Act the defense of assumption of risk is available to it. The plaintiff contends that he was not so engaged, that the defendant's liability is to be determined by the laws of this state, and that, as the defendant had elected not to come under the provisions of the Workmen's Compensation Act which is applicable to the shop employees of railroad companies, the defense of assumption of risk is not available to the defendant. We find it unnecessary to determine this question, as the evidence fails to establish negligence on the part of the defendant.

The following grounds of negligence are alleged in the plaintiff's complaint: (a) That said defendant failed to adopt a safe method of performing the operation in process at the time of and immediately prior to the aforesaid injury to plaintiff's intestate; (b) that the defendant failed to exercise ordinary care in the operation of the hammer and tool at and immediately prior to the injury to this plaintiff's intestate; and (c) that the defendant failed to warn deceased of the hazard attendant upon the particular work he was required to do at and immediately preceding the aforesaid injury.

[1][2] To establish the first ground of negligence, the plaintiff called as witnesses a blacksmith in charge of the forging department of the Falk Manufacturing Company, the superintendent of forging and dye sinking of the International Harvester Company, and the superintendent of the forging department of the Allis-Chalmers Manufacturing Company. The substance of the testimony of these witnesses was that the method employed in bending the strap was not the modern and approved method followed in blacksmith shops generally; that the modern method was to use either a swedge or saddle instead of the half-round tools. They testified that they did not know the customary way of doing this...