Fonder v. Gen. Const. Co.

• Decision Date: 05 April 1911
• Citation: 130 N.W. 884,146 Wis. 1
• Parties: FONDER v. GENERAL CONST. CO.
• Court: Wisconsin Supreme Court

146 Wis. 1

130 N.W. 884

FONDER

v.GENERAL CONST. CO.

Supreme Court of Wisconsin.

April 5, 1911.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by John Fonder against the General Construction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action to recover for personal injuries alleged to have been sustained through the negligence of the defendant. The defendant at the time of the injury was constructing a courthouse in the city of Green Bay. The walls had been carried up about 12 feet, and upon them a stiff-leg derrick was being constructed. The derrick when completed was to consist of two foundation pieces about 10 inches square, called “sleepers,” fastened togetherat one end and spreading out at the other end in a V shape from the point of fastening. From the point of fastening a timber 12 to 14 inches square was placed in a perpendicular position at right angles to the sleepers and known as the mast, and from the top of this mast two timbers known as “stiff legs,” and about the same size as the mast, extended to the ends of the sleepers to hold the mast in position. At the time of the injury the sleepers and mast were in position, and one of the stiff legs was being lifted by a face derrick resting upon a platform of planks, which planks rested upon the sleepers and the wall. The face derrick was a small movable derrick, and consisted of a foundation piece, or sill, made of a single piece of timber five inches square and eight feet long, in which were set two small wheels turning the long way of the sill and extending two inches below the bottom of the sill for the purpose of moving the derrick. From the top of the sill and at a point nearly above each wheel, two side pieces about 5 inches square extended up to a point where they were fastened to a crosspiece, the upper ends being about 3 feet apart and the lower ends farther apart at the sill, the top of these two side pieces being the top of the face derrick, but from this extended the mast or pole which was a permanent part of the derrick, making it about 20 feet high. There was a pulley near the top of the derrick and a spool or drum was fastened to the side pieces some three feet from the ground with cranks or handles at either end for turning it, which, when turned by the men, wound the rope around the drum, and lifted the object desired to be elevated.

The plaintiff at the time of the injury was engaged in turning one of the cranks in lifting the stiff leg, the rope having been wound several times around the stiff leg near the middle of it and tied in a knot. The derrick was held in nearly a perpendicular position, leaning a little toward the load it was lifting and held by guy lines. Just as the stiff leg had been lifted to the desired point, and was hanging at an angle of about 45 degrees, and in position to place the eyelet or “gooseneck” in the casting at its upper end down over the shank or pin in the top of the mast, and the lower end about to enter its place in the sleeper, the derrick moved and tipped over, and plaintiff, in fear of being struck by the falling derrick and attachments, jumped to the ground and was injured. The negligence alleged in the complaint is that the derrick “was defectively constructed and unsafe, unsuitable, and improper, in that it stood on wheels which made it unstable; that it was not so constructed, placed, and operated as to give proper protection to the life and limb of plaintiff because it was in no way fastened to such platform or anything else so as to prevent its base from running on its wheels from the place it stood and causing such derrick to fall; that while said plaintiff was so operating such derrick, and hoisting said timber above his head, the said derrick because of its defective, unsafe, unsuitable, and improper construction and being so improperly constructed, placed, and operated, commenced to fall, together with such timber, towards and upon plaintiff; that said plaintiff had no other way of escape but by jumping off said platform to the ground below, which he did in time to escape being struck.”

The answer denies generally the allegations of the complaint, and avers that the negligence, if any, was that of fellow servants of plaintiff, and that plaintiff assumed the risk and was guilty of contributory negligence. Motions for nonsuit and directed verdict for defendant were made and denied, and the following verdict returned by the jury:

“(1) Was the face derrick which was being used and operated at the time the plaintiff was injured not so constructed and operated as to give proper protection to the life and limb of the plaintiff, because of its being on wheels and not so fastened as to prevent its moving on its wheels and tipping over? Answer: Yes.

(2) If you answer the first question, ‘Yes,’ then answer this: Was the use of said derrick in that condition a proximate cause of the plaintiff's injury? Answer: Yes.

(3) Did the plaintiff at the time he was working at the derrick know and comprehend the danger from using said derrick in the condition in which it was then? Answer: No.

(4) If your answer to the third question should be ‘No,’ then answer this: Ought the plaintiff in the exercise of ordinary care to have discovered and appreciated such danger before the accident? Answer: No.

(5) Was the face derrick used at the time of the accident constructed in the way such derricks are usually constructed for work of the kind then being done by persons of ordinary care and experience in like business? Answer: Yes.

(6) Was the face derrick used at the time of the accident placed and operated in the manner usually employed, under like circumstances, by persons of ordinary care and experience in like business? Answer: No.

(7) Were there blocks under the face derrick at the time of the accident? Answer: No.

(8) Was there any want of ordinary care in the manner in which the rope was fastened to the stiff leg? Answer: Yes.

(9) If your answer to the eighth question should be, ‘Yes,’ then answer this: Was such want of ordinary care a proximate cause of the plaintiff's injury? Answer: Yes.

(10) Ought a man of ordinary intelligence and prudence in McCarthy's position to have reasonably anticipated that there was danger of the face derrick on which the plaintiff was working, tipping over, so as to injure those working about it? Answer: Yes.

(11) What amount of money will compensate the plaintiff for his injury? Answer: $2,150.

(12) Did any want of ordinary care on the part of the plaintiff contribute proximately to the injury? Answer: No.”

Plaintiff moved for judgment on the verdict, and the defendant made the usual motions for judgment notwithstanding the verdict to change the answers in the special verdict, for judgment on the verdict as so changed, and for a new trial, which motions were denied and judgment entered in favor of the plaintiff on the verdict, from which this appeal was taken.

Sheridan & Evans, for appellant.

Kaftan & Reynolds (P. H. Martin, of counsel), for respondent.

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

By the first, second, third, fourth, eleventh, and twelfth findings in the special verdict the jury found, in substance, that the face derrick in question was not placed and operated so as to give proper protection to the life and limb of plaintiff because of its being on wheels, and not so fastened as to prevent its moving on its wheels and tipping over, and that such was the proximate cause of his injury; that plaintiff did not know nor comprehend the danger from using the derrick in the condition it was in, and that he ought not in the exercise of ordinary care to have discovered and appreciated such danger; that he was not guilty of contributory negligence; and that he sustained $2,150 damages.

These findings, if consistent with other answers to questions in the special verdict and supported by the evidence, we think are sufficient to support the judgment. It is contended, however, by counsel for appellant that the answer to the first question of the special verdict is a finding of proper construction and operation of the face derrick, relieving the defendant from negligence, and, if not such finding, the question is so vague, obscure, and misleading that its answer is not sufficient to support a judgment. It is further insisted that the first question is faulty, in that it covers more than one issue, and that its answer is inconsistent with the answers to the fifth and sixth questions, and that, if the answer to the first question is a...