Goltz v. Milwaukee, L. S. & W. Ry. Co.

• Citation: 44 N.W. 752,76 Wis. 136
• Parties: GOLTZ v. MILWAUKEE, L. S. & W. RY. CO.
• Decision Date: 07 January 1890
• Court: United States State Supreme Court of Wisconsin

76 Wis. 136

44 N.W. 752

GOLTZ

v.MILWAUKEE, L. S. & W. RY. CO.

Supreme Court of Wisconsin.

Jan. 7, 1890.

Appeal from circuit court, Outagamie county; MYERS, Judge.

Action by Henry Goltz against the Milwaukee, Lake Shore & Western Railway Company, to recover damages for personal injuries sustained through the alleged negligence of defendant in furnishing defective implements to be used by plaintiff in his work. Judgment for plaintiff, and defendant appeals.Alfred L. Cary, for appellant.

Gabe Bouck, for respondent.

ORTON, J.

The facts pertinent to the question upon which this case must be decided are substantially as follows: In October, 1887, the plaintiff and one Jacob Konrad were employed by the defendant company to paint the ceiling of one of the defendant's shops at Kaukauna, in this state, and worked together, in painting the ceiling, nearly all the time from and including the 17th day of October to the 9th day of November, the time of the accident, and had worked in said business, each, eleven days and a half. The defendant furnished them, as the means or appliances of their work, six large iron hooks, six or seven feet long, made of inch iron. The hooks at the upper end were large enough to go over the beams of the ceiling, and at the lower end were so made as to receive a plank edgewise, two inches thick. These hooks, placed in proper distances, held each end of the plank, and on the plank the platform or staging was laid, on which the painters could safely stand to paint said ceiling. These hooks were made at the blacksmith shop of the company, of wrought iron. The position of the platform was frequently changed by the plaintiff and Konrad, in doing said work. At the time of the accident one of the two-inch planks, about fourteen feet long, was placed in one of the hooks at the outer end, and at the other end was supported by a bracket against the wall; and while they were standing on the platform, doing their work, the hook broke and let the platform down, and they were both precipitated to the floor below, a distance of about twenty feet, and the plaintiff was seriously injured. The plaintiff and Konrad had handled these hooks and moved them two or three times daily. In the construction of this particular hook there was evidently left a flaw or crack, which caused it to break at that place. That flaw or crack was observable from the outside, and could have been easily seen by any person whose eyes were directed to that point, without the necessity of any close scrutiny or examination. The crack or flaw where the hook broke was on the back part of the joint, and observable from the outside of it. The plaintiff testified as follows: “We would change these stagings something like two or three times a day or more. Konrad and I did the moving. We would take the planks off, change the hooks, and put them back again. I assisted him in doing it. No one else helped us. I never examined these hooks to see if they were all right or not. I never paid any attention to the hooks, any more than I used them. I had them in my hands every day. I lifted them up on the beams.” Konrad testified, on behalf of the plaintiff, as follows: “They showed me the hook right away, (after the accident,) and I looked at it. I just looked at the iron, at the break. I did not take it in my hands and examine it. It was about a foot or two from me when I looked at it. This flaw that I saw was right in the inside of the iron. It looked to me as though it would show on the outside of the iron. I suppose, if a person examined it before it was broken, the flaw would show on the outside of the iron. I think the flaw would indicate itself, by looking at the hook on the outside.” Mr. Daley, another witness for the plaintiff, testified that he examined the hook, but did not make a very careful examination of it. He said, at the time: “That iron has a flaw in it.” He testified: “That hook was in bad condition where the break was. I could not tell you exactly in which part of the crook, but I know in one corner there was a crack about half an inch in size. It would show on the outside of the hook.” The witnesses for the defendant, and most of them skilled workmen in iron, including the blacksmith who made the hooks, testified that there was no crack or flaw or defect that could have been seen on the outside of the hook that broke. There is this explanation that might be given of this contradictory testimony: It was incumbent upon the defendant to prove that there was no defect or flaw in this hook that was apparent or observable to the mechanic of the defendant who made it, or to other skilled employes of the company who used or examined it. On the other hand, the plaintiff must show the converse of this proposition. But the plaintiff, in doing so, must not go so far as to show a defect observable, as well to a person of ordinary prudence and observation as to the plaintiff, who used it. If the defect was latent, or if there was no defect, the plaintiff could not recover. If the defect was patent, then the defendant's negligence is established. But if it was so patent as to be equally observable to ordinary persons, or the plaintiff, with no want of ordinary care, then the plaintiff's negligence is established, and he cannot recover. The learned counsel of the appellant, therefore, contends-- First, that there was no defect; and, secondly, that, if there was one, it was so patent as to be negligence on the part of the plaintiff in not discovering it, or, if he discovered it, in using the defective implement. This is the material issue in the case, and it is quite a narrow and concentrated one, and there is not much latitude either way.

The jury found, in answer to the first, second, third, and seventh questions, that the hook was in a defective condition when the defendant delivered it to the plaintiff, and when it broke, and that the plaintiff used it properly, and that neither he nor his assistant was guilty of any ordinary neglect in the use of the hook that contributed to the injury. The jury also found, as a natural sequence of these ther findings, in answer to the fourth question, that the defendant did not use ordinary care and diligence in the selection of the iron for this hook, in making it or testing it, and keeping it in repair. This is a sufficient finding of the defendant's negligence, and that there was a patent or observable defect in the hook when made, and when delivered to the plaintiff for his use. But the jury also found, in answer to the fifth question, as follows: “Up to the time the hook was delivered to the plaintiff there was a defect in it that could be observed by the owner of the hook, or parties that used it, if they were exercising ordinary care in using or taking care of it.”

Both parties moved for judgment on this special verdict, and judgment was rendered thereon in favor of the plaintiff. The learned counsel of the appellant contends that the last above special finding of the jury was a sufficient finding that the plaintiff was guilty of a want of ordinary care that contributed to his injury, in not observing the defect in the hook, or in using it after his discovery of the defect, or that such is the legal effect of this finding. The learned counsel of the respondent contends that this finding refers only to the defendant, the owner of the hook, and to parties that used it for the defendant before it...