Guse v. Power & Mining Mach. Co.

• Decision Date: 10 December 1912
• Citation: 151 Wis. 400,139 N.W. 195
• Court: Wisconsin Supreme Court
• Parties: GUSE v. POWER & MINING MACHINERY CO.

151 Wis. 400

139 N.W. 195

GUSE

v.POWER & MINING MACHINERY CO.

Supreme Court of Wisconsin.

Dec. 10, 1912.

Appeal from Circuit Court, Milwaukee County; F. C. Eschweiler, Judge.

Action by William Guse against the Power & Mining Machinery Company. From a judgment for plaintiff, defendant appeals. Affirmed.Doe & Ballhorn, of Milwaukee, for appellant.

Connell & Weidner, of Milwaukee (Glicksman, Gold & Corrigan, of Milwaukee, of counsel), for respondent.

TIMLIN, J.

The complaint in this action contained numerous charges of negligence. Among them may be found averments which, under the liberal rule of pleading now existing, support the verdict. The verdict was as follows:

“(1) Was the S-hook, which broke at the time of the injury to plaintiff, October 11, 1909, an unsafe appliance for the use and purpose to which it was put? Answer: Yes.

(2) If you answer question 1 ‘Yes,’ then answer: Ought the defendant, in the exercise of ordinary care and prudence, to have reasonably anticipated that some injury might probably result from the use of such hook? Answer: Yes.

(3) If you answer 1 and 2 ‘Yes,’ then answer: Was the use of such hook the proximate cause of plaintiff's injuries? Answer: Yes.

(4) Was the breaking of such hook at the time of the injuries to plaintiff a pure accident? Answer: No.

(5) Was William Bunty incompetent to make proper and suitable hooks for use in the manner in which the hook which broke was used at the time of the accident? Answer: Yes.

(6) If you answer the fifth question ‘Yes,’ then answer: Did defendant know of such incompetence? Answer: Yes.”

“(8) If you answer question 5 ‘Yes,’ and either 6 or 7 ‘Yes,’ then answer: Was such incompetence of William Bunty the proximate cause of plaintiff's injuries? Answer: Yes.

(9) Ought the plaintiff, in the exercise of ordinary care, to have anticipated that the use of such hook might probably result in an injury? Answer: No.

(10) At what sum do you assess plaintiff's damages? Answer: $6,500.”

Fifteen errors are assigned, ten of them relating to rulings on evidence, one to refusal to direct a verdict for defendant, one to misconduct of counsel in argument, one to the form of the special verdict, one to the instructions, and one denying motion for a new trial. There is no controversy in the evidence with reference to the manner of plaintiff's injury, or with reference to the direct physical cause of such injury. A large piece of sheet steel, 6 feet in width by 14 feet in length, and weighing about 1,000 pounds, and perforated along the edges with bolt or rivet holes, was passed between rollers, which changed it from a flat plane to the segment of a cylinder. This segment was removed from the place of this operation by that mechanical device known as a crane. Two appliances, called “S-hooks,” were hooked into a ring, or rings, suspended from the crane, and the lower end of each S-hook hooked into a rivet hole on opposite sides of the segment, which was then lifted by the crane and carried to its place of destination. These S-hooks were so called because they had a crude resemblance to the letter S, in that the upper and lower hooks were bent in opposite directions. They were made out of soft, round rod steel, five-eighths of an inch in diameter, were heated and bent into this shape by Mr. Bunty, one of defendant's workmen, who was not a blacksmith, and had little or no knowledge of the properties of iron or steel, and they were hooked into the curved sheet about to be lifted by the plaintiff and Mr. Bunty. After the curved sheet was raised, and while it was suspended on these hooks, one of the hooks broke, and the sheet of iron fell on plaintiff, injuring him severely. The broken S-hook was in evidence, and there was testimony that at the point where it broke there was evidence of crystallization, and that similar hooks had frequently either broken or bent in this and similar operations at defendant's factory while lifting similar weights. Ganon, who was defendant's superintendent at the time, says that the former breaking of the hooks was not under similar circumstances, but that they broke in turning sheets over before the bevel shears. This was, however, a question for the jury. The hooks were not inspected or tested in any way after being bent and before being used. There is evidence that the hooks were in their proper place at the time the hook broke, although there is considerable evidence from which the contrary inference might be drawn. This was also a question for the jury.

[1] The breaking of the hook under these circumstances was a fact from which the jury might infer that the hook was defective or insufficient for the purpose for which it was used. Klitzke v. Webb, 120 Wis. 254, 97 N. W. 901;Vorbrich v. Geuder & Paeschke Mfg. Co., 96 Wis. 277, 71 N. W. 434. Cases may be found which go further and hold that negligence may be presumed from such fact. But, standing alone, the breaking of the hook does not raise a presumption of negligence. Spille v. Wisconsin B. & I. Co., 105 Wis. 340, 81 N. W. 397;Hupfer v. National Dis. Co., 114 Wis. 279, 90 N. W. 191;Tiborsky v. C., M. & St. P. Ry. Co., 124 Wis. 243, 246, 102 N. W. 549.

[2] When this evidence is supplemented by evidence that hooks of the same kind, used in the same factory while lifting similar weights under the same or similar circumstances, frequently gave way by bending or breaking, then from both there is evidence tending to establish negligence on the part of the master by continuing to use such insufficient and defective appliances. Revolinski v. Adams Coal Co., 118 Wis. 324, 95 N. W. 122. We may therefore say that evidence that the hook was defective must be supplemented by evidence showing negligence on the part of the defendant. This latter may be supplied by evidence tending to show that such hooks broke frequently, or bent under similar weights, and that the employés had been subjected to such danger for a considerable length of time. Fleming v. Northern Tissue P. M. Co., 135 Wis. 157, 175, 114 N. W. 841, 15 L. R. A. (N. S.) 701. There was also evidence tending to show that such weakness in hooks of this size and make in all probability came to the knowledge of defendant's superintendent; that the hooks were improperly made; and that there were indications of crystallization of the steel at the place of fracture.

[3] So, without going into the question of the incompetency of Bunty, there was evidence proper to be submitted to the jury on the question whether the hook was defective, and also whether the defendant was negligent in supplying the plaintiff with this defective appliance. There was therefore no error in refusing to direct a verdict for defendant. There was no request by defendant to submit, in the special verdict, a question covering defendant's negligence in respect to furnishing the unsafe appliance, so that must be considered settled in the affirmative by the judgment. There being in the case sufficient to support the verdict without considering the question of the incompetence of Bunty, or its effect in producing the plaintiff's injuries, the errors assigned on this latter branch of the case must be disregarded as nonprejudicial. Much testimony was given on both sides relative to the tensile strength of iron of the size and quality of the bar out of which these hooks were made. It is of little or no value in this case, because not supplemented by testimony showing the relation between tensile strength and the strength of an open hook supporting the weight at the middle of the bend of the...