Hamann v. Milwaukee Bridge Co.

• Decision Date: 05 June 1908
• Citation: 116 N.W. 854,136 Wis. 39
• Parties: HAMANN v. MILWAUKEE BRIDGE CO.
• Court: Wisconsin Supreme Court

136 Wis. 39

116 N.W. 854

HAMANN

v.MILWAUKEE BRIDGE CO.

Supreme Court of Wisconsin.

June 5, 1908.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Lizzie Hamann, administratrix, against the Milwaukee Bridge Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action, considered upon a first appeal, and reported in 127 Wis. 550, 106 N. W. 1081, was tried a second time; the narrative of conditions and events being substantially similar to that previously described. The measurements and dimensions of the machine were more accurate, locating the center of gravity upon the longitudinal center and at a height of 34 inches above the base and about 32 inches from the rear and higher end of the machine as it descended the skids. Its place at moment of capsizing was with its lower end about one foot from the floor. Additional evidence was offered of some subsidence of the planks which served as skids of a slight irregularity in the cast-iron base of the machine, so that the middle portion thereof was lower than the two sides by something more than a quarter of an inch, whereby was claimed to have been produced a lateral oscillation, and there was evidence tending to show that the machine did in fact oscillate as it descended the skids, and that the skidway was unequal in strength and irregular in surface and sagged under the weight of the machine. There was also evidence of a tendency at one time in the descent to vary from the center of the skidway towards the east, and there was considerable more evidence of a custom by others in unloading such a machine to build a frame below so that the width of the base would be uniform; also to attach lateral guy lines. Evidence was given which it was claimed tended to prove that at the time of the accident all of the rollers were within the limits of the narrow 16-inch base, and none of them engaged under the broader base at either end. A special verdict of six questions was rendered to the following effect: (1) The manner of unloading the machine from the car to the floor was not reasonably safe; (2) such manner of unloading was not open and obvious to the deceased; (3) there was failure on the part of defendant to instruct the deceased as to the danger of the machine tipping over while being unloaded from the car; (4) such failure to instruct was the proximate cause of the injury; (5) deceased was guilty of no contributory negligence; and (6) damages as upon first trial $3,500. After proper motions to raise the sufficiency of evidence on these various questions had been overruled, judgment was rendered for plaintiff upon the verdict, from which the defendant appeals.Chas. A. Vilas (Edward P. Vilas, of counsel), for appellant.

Houghton & Neelen, for respondent.

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

The appellant first contends that there was no evidence from which the jury could find that the method adopted for lowering the machine in question was not reasonably safe. It supports such contention almost entirely upon the ground that plaintiff failed to prove that the general custom of doing such work among other manufacturers was discordant from the method adopted by the defendant. Such failure might be conceded arguendo, and still appellant's main contention fail to result. When the facts are made known to a jury, and especially when it is proved that there is a feasible safer method frequently or sometimes adopted by others for performing the same work, a situation is presented for the exercise of judgment as to whether the method pursued was reasonably safe. True this may be supplemented by proof of a general custom to exercise greater precautions or adopt greater safeguards, but such proof is by no means necessary to the establishment that the mode adopted by defendant was unreasonably perilous, or, in other words, not reasonably safe. Powalske v. Cream City B. Co., 110 Wis. 461, 467, 86 N. W. 153;Parker v. Fairbanks-Morse Mfg. Co., 130 Wis. 525, 110 N. W. 409. The authorities cited by appellant are to the position that, when it is proved that an apparatus or a method of procedure is unnecessarily dangerous, the party liable may avert the conclusion that it is unreasonably so by proving a general custom amongst others similarly situated to use such appliances or such methods. Boyce v. Wilbur L. Co., 119 Wis. 642, 97 N. W. 563;Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689. There was abundant proof of the feasibility of using certain precautions and safeguards against the peril from which plaintiff's decedent suffered, and that they were often applied by others; and even if such evidence did not go to the extent of proving a general custom, it was sufficient to warrant a finding of the jury by the answer to the...