Gussart v. Greenleaf Stone Co.

• Decision Date: 28 January 1908
• Parties: GUSSART v. GREENLEAF STONE CO.
• Court: Wisconsin Supreme Court

134 Wis. 418

114 N.W. 799

GUSSART

v.GREENLEAF STONE CO.

Supreme Court of Wisconsin.

Jan. 28, 1908.

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

Personal injury action by William Gussart against the Greenleaf Stone Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Among other references cited upon the part of the appellant were the following: Roth v. Barrett Mfg. Co., 96 Wis. 615, 71 N. W. 1034;Holt v. C., M. & St. P. Ry. Co., 94 Wis. 596, 69 N. W. 352;Schultz v. C., M. & St. P. Ry. Co., 116 Wis. 31, 92 N. W. 377;McMillan v. Spider Lake S. & L. Co., 115 Wis. 332, 91 N. W. 979, 60 L. R. A. 589, 95 Am. St. Rep. 947;Relyea v. Tomahawk P. & P. Co., 110 Wis. 307, 85 N. W. 960;Hencke v. Ellis, 110 Wis. 532, 86 N. W. 171;Showalter v. Fairbanks. etc., Co., 88 Wis. 376, 60 N. W. 257;Larsson v. McClure, 95 Wis. 533, 70 N. W. 662;Nash v. C., M. & St. P. Ry. Co., 95 Wis. 327, 70 N. W. 293;Sladky v. Marinette L. Co., 107 Wis. 250, 83 N. W. 514;Bigelow v. Danielson, 102 Wis. 470, 78 N. W. 599;Corrigan v. West Div. S. S. Co. (Wis.) 113 N. W. 441;Peschel v. C., M. & St. P. Ry. Co., 62 Wis. 338, 21 N. W. 269;Dwyer v. Am. Exp. Co., 82 Wis. 307, 52 N. W. 304;Portance v. Lehigh V. C. Co., 101 Wis. 574, 77 N. W. 875, 70 Am. St. Rep. 932;Dahlke v. Ill. Steel Co., 100 Wis. 431, 76 N. W. 362; Gereg v. Mil. Gas L. Co., 128 Wis. 35, 107 N. W. 289, 7 L. R. A. (N. S.) 367;Hamann v. Mil. B. Co., 127 Wis. 550, 106 N. W. 1081;Van de Bogart v. Marinette & M. P. Co., 127 Wis. 104, 106 N. W. 805;Banderob v. Wis. Cent. Ry. Co. (Wis.) 113 N. W. 738.

Among other references cited upon the part of the respondent were the following: Horn v. La C. B. Co., 123 Wis. 399, 101 N. W. 935;Baumann v. C. Reiss C. Co., 118 Wis. 330, 95 N. W. 139;Klochinski v. Shores L. Co., 93 Wis. 417, 67 N. W. 934;Schamper v. Ullrich (Wis.) 111 N. W. 691;Gill v. Homrighausen, 79 Wis. 634, 48 N. W. 862;Thompson v. Edward P. Allis Co., 89 Wis. 523, 62 N. W. 527;Chopin v. Badger P. Co., 83 Wis. 192, 53 N. W. 452;Revolinski v. Adams Coal Co., 118 Wis. 324, 95 N. W. 122.Charles A. Vilas and Vilas & Vilas, for appellant.

Wigman, Martin & Martin, for respondent.

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

The verdict and judgment for plaintiff rest upon the failure of defendant to warn or instruct the plaintiff relative to the dangers attendant upon the work of stopping cars under the following circumstances: The defendant is operating a stone quarry, and manufacturing and shipping lime and crushed stone at Greenleaf, Brown county, Wis. The crushed stone is loaded on railroad cars by spouting the same from pockets above the car. This makes it necessary to stop the car under the pocket. The spur track leading under these pockets begins at the switch, and terminates at a ledge of rock high enough to prevent further progress of track or cars thereon. From this ledge back to the switch there is considerable descent, so that cars are hauled up to the ledge on the spur track by a team of horses, and, upon detaching the horses, the car immediately starts back down the spur track, passing under the pockets toward the switch. It is necessary to enable the horses to draw the car up that the brakes be loose. It is necessary, in order to control the car going back by its own momentum, that the brakes be tightened, and a man is on top of the car for that purpose at the time the team is detached. But lest the car so gain in momentum while this man is taking up the slack of the brake chain that he would be unable to control it, in order to stop it under the pocket another man with an iron bar called a “crowbar” or “pinch bar” is to hold the car in the manner hereinafter described until the brakeman acquires sufficient control of it by means of his brake. A crowbar or a pinch bar is an iron bar 4 or 4 1/2 feet long, round except for a foot or more at the lower end, which is square, and about an inch or an inch and a half in diameter. The lower square end of the bar is cut off diagonally so as to form a pointed wedge with one of the square surfaces, and an obtuse angle with the opposite square surface. The last point of contact between the diagonal cut-off and the square surface is called the “heel,” and the former point of contact is called the “point,” and by inserting the point between the car wheel and the rail on which the wheel runs, close to the flange, and using the heel as a fulcrum and bearing down upon the bar, considerable power can be exerted toward stopping the car, depending, of course, upon the relative distance from the heel to the point, and also from the heel to the handle end, or place where the power is applied. The distance from the point to the heel along the square surface of the bar would not exceed two inches, and it must be apparent that if the wheel is not immediately stopped, but follows on the bar to a place more than two inches from the point, the conditions under which power is attempted to be applied are suddenly reversed, and the bar will be swiftly thrown downward with all the weight of the car which that particular wheel, elevated by the thickness of the bar, carries. The top surface of the rail is not level, but slightly rounded, nor is the periphery of the car wheel flat, but is larger next the flange at the inside of the rail and smaller at the outside. To use the pinch bar effectively, in order to stop the car, it is necessary to insert the point of the bar properly on the surface of the rail near the flange on the car wheel, with the heel downward, and, using the heel as a fulcrum, press down on the bar, or else merely block the wheel by inserting the point of the bar in the manner described without pressing down. The freight car in question was a gondola of about 50,000-pounds capacity. The utmost blocking effect of the bar would be that of a wedge-shaped piece of iron 2 inches long and 1 1/2 inches thick at the thickest part of the wedge. The effectiveness as a block could, of course, be increased by skillful handling of the bar as a lever.

The testimony of the plaintiff is contradicted on very material points by every witness present at the time of the injury, and is quite uncertain and confused with reference to the manner of his injury. We are brought to face with the defendant's motion to strike out the answer to the third question as contrary to the uncontradicted evidence, and to answer that question in the affirmative, and grant judgment to the defendant upon the verdict so amended. The second question inquired whether stopping the car at the place in question when in motion and by means of a pinch bar was an act dangerous to the party doing it; and this the jury very properly answered in the affirmative. The third question and answer were as follows: “If your answer to the second question should be ‘yes,’ then answer this: Was such danger one that was open and apparent...