Gierczak v. Nw. Fuel Co.

• Decision Date: 15 March 1910
• Citation: 142 Wis. 207,125 N.W. 436
• Parties: GIERCZAK v. NORTHWESTERN FUEL CO.
• Court: Wisconsin Supreme Court

142 Wis. 207

125 N.W. 436

GIERCZAK

v.NORTHWESTERN FUEL CO.

Supreme Court of Wisconsin.

March 15, 1910.

Appeal from Circuit Court, Bayfield County; A. H. Reid, Judge.

Action by Floryan Gierczak against the Northwestern Fuel Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Personal injuries. The plaintiff was a man of ordinary intelligence, 47 years of age, who at the time of his injury had been employed by the defendant as a coal shoveler at its large coal dock at the city of Washburn for nine years. On the 6th of September, 1907, he was engaged shoveling coal into a large bucket in the hold of a large vessel lying at defendant's coal dock, when the end of a half inch steel wire rope fell down through the hatchway and struck him in the face, knocking out several teeth, and inflicting other injuries. The fall of the rope came about in this way: In order to rapidly unload the boat, a long boom extends out from and about 35 feet above the dock to a point above the middle of the hatchway of the boat. On the end of the boom is a pulley or sheave through which the steel rope in question runs to a large drum, which is operated by a hoister in a shanty on the dock. During the early stages of the unloading of the boat, large clam shells (so called) are attached to the steel rope and lowered into the hold, which automatically load themselves and are drawn up to the end of the boom, and then pulled back by a sort of a carriage running on the boom back into the yard and emptied. When the coal is nearly gone in the hold, the clam shells are detached because they will no longer load themselves, and large buckets are substituted. This operation takes about half an hour, and in course of it the end of the steel rope has to be drawn through the pulley by men on the dock and always falls down into the hatchway if a boat be at the dock, or into the water if there be no boat there. At the time of the accident the clam shells had been taken off, and the steel rope was being pulled out of the pulley, and in course of this operation the end of it fell down into the hatchway. No warning was given of its approaching fall. The foregoing facts are all without dispute.

The jury returned a special verdict finding (1) that the defendant did not furnish the plaintiff with a reasonably safe place to work; (2) that this failure was a proximate cause of plaintiff's injury; (3) that defendant was negligent in failing to warn plaintiff of the expected drop of the rope; (4) that such negligence was a proximate cause of plaintiff's injury; (5) that plaintiff did not know and appreciate, before his injury, the danger to which he was subject by the process of changing from clam shells to buckets; (6) that he could not have known or appreciated such danger before his injury by the exercise of ordinary care; (7) that no want of ordinary care on plaintiff's part proximately contributed to his injury; and (8) that his damages were $1,200. The defendant moved to reverse the answers to the various questions and for judgment on the verdict as corrected, also that the verdict be set aside and a new trial granted, but all the motions were denied and judgment rendered on the verdict for the plaintiff, from which judgment defendant appeals.Solon L. Perrin and John Walsh, for appellant.

Sanborn, Lamoreux & Pray and Horace B. Walmsley, for respondent.

WINSLOW, C. J. (after stating the facts as above).

It appears that the plaintiff brought a previous action for the same injury and voluntarily dismissed the same upon the trial and has never paid the judgment for costs which followed the dismissal. Upon an affidavit showing these facts, the defendant at the opening of the trial of the present action moved that the proceedings herein be stayed till such judgment was paid, but the court overruled the motion. Whether this motion and the order thereon should not have been preserved in the bill of exceptions in order to be reviewed on appeal we do not find it necessary to decide. Even conceding the order to be an intermediate order which may be reviewed without exception under section 3070, St. 1898, still we cannot say that error was committed in denying the motion, because it appears by supplemental return that, upon the hearing of the motion, affidavits were presented to the court tending to show that the dismissal of the former action resulted from an unexpected situation developed upon the trial; and was made in good faith and not prompted by any intention to harass the defendant, and, further, that the plaintiff has been and is absolutely unable to pay the former judgment and support the family dependent upon him. Under such circumstances, the question whether the action should be stayed until the costs of the former action be paid was a question addressed to the sound discretion of the court, and we cannot say that any abuse of discretion appears in the present case. Odegard v. N. W. L. Co., 130 Wis. 659, 110 N. W. 809.

The general contention that a verdict for the defendant should have been directed either because the plaintiff assumed the risk as matter of law, or because the injury was the result of the negligence of a fellow servant in failing to give plaintiff warning that the rope was about to fall, cannot be sustained. The evidence showed or tended to show that every time the change was made from clam shells to buckets the end of the steel rope necessarily fell into the hold of the ship, a distance of some 60 feet, and that the men who were shoveling in the hold could not ordinarily tell when it was about to fall; that the company had made no rule making it the duty of any person to give notice of the expected...